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Rules of Court
Applicable in all courts (MTC, RTC, CA, SC)
Not applicable in land registration, election laws, naturalization
Civil Action
Ordinary Civil Action
Rule 1-40
Special Civil Action
Rule 62-71
*Collection suit cannot be consolidated because it is governed by the different rules
Subject-matter – the thing, the wrongful act, the contract that had given rise to the case; directly under controversy
Cause of action –
Remedy –
*breach of contract
Subject Matter – Contract
Cause of Action – Breach
Remedy – Specific performance
Criminal Action
Special Proceeding
Adoption
Probate of a will
Escheat
Venue (Rule 4)
Real Action
Personal Action
Binding Effect:
In Rem – the binding effect of the decision of the court is against the whole world (land registration)
In Personam – the binding effect is between the parties only
Quasi In Rem – action brought against specific party but involved real property (foreclosure of property in case of default of payment)
Action in Personam (to bind a person)
Action in Rem (to bind a property)
Action Quasi in rem (to bind the person for the purpose of binding his property)
Cause of Action (Rule 2)
Cannot be split but can be joined
The act or omission by which a party violates a right of another
Elements:
1. The existence of the legal right of the plaintiff
2. A correlative legal duty of the defendant to respect one’s right
3. An act or omission of the defendant in violation of the plaintiff’s right
Parties
Plaintiff
Defendant
Joinder by pro forma party (husband and wife)
Exceptions:
Wife is suing to recover her paraphernal property
Exercise of profession
Judicially separated
Separation of property in pre-nup
Administration of property is transferred to either spouses
Husband sues the wife
Art 25 – 35 of human relations
Separated in fact for more than 1 year
Real Party in interest
Is he right the person to demand me?
Is he the right person that I will demand?
Motion to dismiss can be raised as a defense to know the real party in interest
Compulsory Party – must be impleaded, must always be joined
Necessary Party- need not always need to be joined unless ordered by the court
Permissive – may or may not be impleaded
Series of transactions-separate dealings but with the same kind of the subject matter of the suit
Venue
Personal circumstances of parties (address)
Check the document, real or personal action
Look for venue stipulation, is it restrictive?
Real action or personal action will be important if there is no venue stipulation
Real Action affects the title or possession of real property
Ejectment cases, if there is venue stipulation, follow the venue stipulation
Venue stipulation is for the convenience of the parties, though it’s a valid stipulation, if it will prejudice one of the parties, it can be questioned.
Bill of Lading is different from Lease of Agreement
Uniform Rules
Ordinary Procedure
Summary Procedure – applicable to MTC only
Small Claims Procedure
Kinds of Pleadings
Pleadings are the written statements of the respective claims and defenses of parties submitted to the court for appropriate judgment
Complaint -> Answer (Bill of Particulars if cannot be understand) -> Reply
Complaint with claim -> Answer with counterclaim (compulsory or permissive) (if compulsory counterclaim there is no need for reply because it is necessarily arises on the same transaction)
Complaint with counterclaim
Third Party Complaint -> Third Party Answer
Complaint – complete if it can be intelligently understand and answered
Complaint is the pleading stating the cause or causes of action of the plaintiff and the reliefs sought
Regular Proceedings - Answer is 15 days to file
Summary Procedure – Answer is 10 days to file
Summary Proceedings - Answer is a prohibited pleadings
Answer is the pleading that where the defendant states the his defenses to the complaint
Defenses are either negative or affirmative
Negative defenses specifically denies the material facts alleges in the complaint stating the reason of such denial (lack of information as to veracity of the allegation)
Affirmative defenses is alleging a new matter, hypothetically admits the allegations in the complaint but raises defenses that will prevent recovery (release, payment, fraud, etc)
Reply is not optional when the defense of usury is raised or if the defense in based on actionable document (forged signature)
Counterclaim is either compulsory or permissive
There is no need to file a reply against a compulsory counterclaim
Compulsory counterclaim must be file on the same suit because it arises from the same transaction (dependent to the main action)
Compulsory counter claim
1. Arises from the same transaction or series of transactions
2. Do not need third party in order for the court to adjudicate
3. Plaintiff cannot be declare in default if answer is not file within the reglementary period
Permissive counter-claim
1. Does not arise on the same transaction, not deem barred if not set up
2. Plaintiff can be held in default because it is an initiatory pleading
3. Requires a Certificate on Non-Forum Shopping
Permissive counterclaim is a new suit altogether and must be answered, pay docket fees, certificate of non-forum shopping (it is an independent suit)
Answer with compulsory counterclaim need not be separately filed, need not pay docket fee, need not need to execute a certificate of non-forum shopping
Reply with Motion To Dismiss to the Counterclaim
Plaintiff can raise both compulsory and permissive counterclaim at the same time in his answer
Defendant’s answer shall be Reply to Answer with Answer to the Permissive Counterclaim
Cross-claim – a suit against co-defendant
Counterclaim with cross-claim
Permissive Cross-claim (if outside the jurisdiction of the court) the dismissal of the complaint carries with it the dismissal of the cross-claim which is purely defensive. (if filed with affirmative defense, the dismissal of the complaint does not carry with it the dismissal of the permissive cross-claim, because it is a new suit altogether)
Answer with a compulsory counter claim and compulsory cross claim
Compulsory Cross-claim
Third (fourth, etc) party complaint – new complaint with prior leave of the court intended for contribution, subrogation, other reliefs (third-party plaintiff v. third-party defendant)
Parts of a Pleading
Caption
Name of the court
Title of the Action
Docket number if assigned
The caption in not controlling, it’s the body
Write the complete name of all the parties in the original pleading, et al is allowed on subsequent pleading
Body
Designation of the pleading
Allegations
Reliefs prayed for
Date of the pleading
Paragraph should be numbered
Signature
Verification
All pleadings in summary proceedings must be verified
Certification against Non Forum-Shopping
General Rule
All initiatory pleading shall have a certificate of non forum-shopping
All parties must sign the certificate of certificate of non forum-shopping (exceptions: Docena v. Lapesura)
Lawyers are not allowed to sign the certificate of non forum-shopping
Elements
Identity of Parties
Identity of cause of action
Similarity of interest
Defendant can sign a Certificate of Non Forum-Shopping in a permissive counter claim (UST v. Surla)
Corporation can only act through its officers (board resolution)
There is no forum shopping in Court of Appeals because there is only one Court of Appeals (Sameer v. Santos)
Ultimate Facts
Initiatory Pleadings
Alternative Causes of Actions
Alternative Defenses
Capacity to sue
Minor child has no capacity to sue, unless represented by a guardian
Domestic Corporation has a capacity to sue
Foreign Corporation not doing business in the Philippines cannot sue (exceptions: Antam (isolated transaction), Merrill Lynch (estoppel))
Foreign Corporation licensed to do business in the Philippines can sue and be sued
Fraud and Mistake
Must be alleged with particularity
Conditions of the Mind (ill will, ill refute, malicious intent)
Alleged generally
Alleged with Particularity
Fraud
Mistake
Capacity
Alleged Generally
Conditions precedent
Conditions of the mind
Judgments of a foreign court
Actionable Document
It is a written document which is the basis of claim or defense
The document or the substance of such document shall be set forth in pleading and the original or photocopy of such document is annexed in the pleading
The denial must be under oath, not only a specific denial
It can be contest under oath specifically denying it and setting forth what the facts should be
If it is not denied under oath, it is deemed admitted (technical admission) or its genuineness is deemed admitted
If the counsel was not able to object the technical admission, the technical admission is deemed waived.
Not all documents attached in the pleading is an actionable document, it may only be evidentiary document
Technical Admission does not apply if the party is not a party to the document or if there is an order of inspection of the original document and the inspection was refused
Genuineness is the authenticity of the document
Due execution
Defenses like Forgery, lack of authority, failure to deliver the instrument cannot be set up if there is a technical admission because it is not consistent with due execution of the document (voluntariness of execution)
Defense of illegal consideration can be raise, and the document is illegal because it is not inconsistent with due execution
Specific Denial
Denial is found in the Answer
Defendant admits…but specifically denies…the truth of the matter being…
Two Modes of Specific Denial:
1. By specifically denying the allegations
2. By denying on the ground of lack of knowledge or information to form a belief as to the truth of material averment
Failure to deny is deemed admission
Negative pregnant – denial with admission of the substantial fact
Reply is important (mandatory) in actionable document and usury
Actionable document and usury must be denied under oath or it is deem admitted
Striking out of Pleading
Sham or false, redundant, immaterial, impertinent, or scandalous matter
Motion to Expunge
Failure to Plead
No Default after defendant filed his answer within the prescribed period
Exceptions of defenses not deemed waive:
1. Lack of jurisdiction over the subject matter
2. Lites pendentia
3. Res judicata
4. Prescription
Default
Failure of the defendant to answer within the reglementary period provided by the rules
Defendant is
The remedies available to a defendant declared in default are:
1. The defendant in default may, at any time after discovery thereof and before judgment, file a motion under oath to set aside the order of default on the ground that was failure to answer or appear on the date set for pre-trial was due to fraud, accident, mistake or excusable negligence, and that he has a meritorious defense;
2. If the judgment has already been rendered when the defendant discovered the default, but before the same has become final and executory, he may file a petition for new trial under Sec. 1(a) of Rule 37;
3. If the defendant discovered the default after the judgment has become final and executory, he may file a petition for relief under Sec. 2, Rule 38; and
4. He may also appeal from the judgment rendered against him as contrary to the evidence or the law, even if no petition to set aside the order of default has been presented by him.
Remedy if the order of default is improvidently issued:
Petition for Certiorari under Rule 65 (Indian v. CHED)
Requirements of a default order:
(1) the court must have validly acquired jurisdiction over the person of the defendant either by service of summons or voluntary appearance;
(2) the defendant failed to file his answer within the time allowed therefor; and
(3) there must be a motion to declare the defendant in default with notice to the latter.
Order of Default
Motion to Declare the Party in Default (not allowed in Summary Procedure)
Grounds for Motion to Lift the Order of Default
Fraud
Accident
Mistake
Excusable Negligence
Affidavit Merit (that you have a meritorious defense) but not needed in improper service of summon
Judgment by Default
Declaration of default
Failure to file an answer
Opposing party may be declare in default for Failure to file an answer to a permissive counter-claim or permissive cross-claim
Failure to attend in pre-trial, party cannot be held in default but the other part may now present evidence ex-parte
Relief from Order of Default
Before Judgment
Motion to Set Aside Order of Default
FAME+Affidavit of Merit
After judgment but before it becomes final and executor
Motion to Set Aside Order of Default
FAME+Affidavit of Merit
After judgment
Petition for relief from judgment
FAME+Affidavit of Merit
Improper order of default
Certiorari under Rule 65
Partial Default
Several parties but common cause of action,
Extent of Relief to be Awarded
Only to the extent of the prayed but it can be less than that and it cannot be more than that or in different kind
Cannot be awarded unliquidated damages (exemplary, moral)
Default is not allowed
Annulment of Marriage
Legal Separation
Amended Complaint
Compromise agreement is final and executory and not subject to amended complaint (Leobrera v. CA)
Stipulations in the original complaint can still be use by confronting the witness in the trial and highlighting the inconsistencies between the original complaint and the amended complaint (Torres v. CA)
Filing fee should be based on the amended complaint because the original complaint is deemed vacated (Magaspi v. Ramolete)
After stipulations of the facts, the judgment based on the stipulation is not anymore subject to amended pleading (MWSS v. CA)
Court can grant a higher amount even without an amended pleading (Northern Cement v. IAC)
Amendments may substantially alter the cause of action of the pleading (Valenzuela v. CA)
Supplemental Amendment is not allowed because the spouses know it from the very start (Lambino v. Presiding Judge)
Supplemental / Amended
If no different cause of action is presented in the amended complaint, it is deemed file on the date the original complaint was filed, but if there is new cause of action presented, it is deemed file on the date the amended complaint is filed (Versoza v. CA)
When to File
10
Summary Procedure
15
Ordinary Procedure
30
If served to a public official authorized to receive summons for a foreign corporation (SEC) (not applicable to foreigners)
60
If by publication
Extra-territorial service
Service of Summons
Service and not when the summon was receive
Date of service is the start of counting of reglementary period
Filing can be personal or by registered mail (there can be a chance that it was filed on the last day of reglementary period via registered mail, don’t file a motion to declare the other party in default the following day)
If the summon was erroneously served, you can file motion to dismiss on the ground of the court has no jurisdiction over the person
Motion for extension to file the answer not allowed in summary procedure
Receipt of the order granting the amended complaint should be the start of counting of 10 days to answer the amended complaint, failure to answer the amended complaint will not cause default but the new matters raise on the amended complaint will be deemed admitted
File an answer to a permissive counter claim, failure to answer will cause default
Third party complaint not allowed in rules of summary procedure
Omitted Counter-Claim or Cross-Claim - Permissible reasons: Excusable neglect, oversight, inadvertence, justice requires
Bill of Particulars
Motion for Bill of Particulars is filed before a responding to a pleading, it can be against a complaint or a counter-claim
No default if there is pending motion for Bill of Particulars
5 days to answer the Bill of Particulars
Answer may be “Answer to Bill of Particulars” or “Amended Complaint” (15 Days to file as a matter of right)
Bill of Particulars cannot be used as discovery procedure (Salita v. Magtolis)
Bill of Particulars must be resolved first before Motion to Dismiss, or Motion to Declare in Default (Agcanas v. Mercado)
If fraud is not declared with particularity, Bill of Particular is the remedy (Santos v. Liwag)
Filing and Service
Filing
The act of submitting pleadings before the court
Service
The mode of informing the other party
If the party is duly represented by a lawyer, service shall be made to that lawyer
If there are multiple clients and multiple lawyers, each of the lawyers shall be served a copy of pleading
If there is only one party but there are multiple lawyers, only one copy is required to be serve to either of the lawyers
Modes of Filing
Personal Filing – deemed filed upon the receipt of the clerk of court
Filing by Registered Mail – deemed filed upon the receipt of post office (If filed via private courier, upon the actual receipt of the clerk of court)
Modes of Service
Personal Service
Service by Registered Mail or Ordinary Mail
Substituted Service – by delivering a copy to clerk of court after failure of both personal service and service by mail
Completeness of Service
Personal Service – complete upon actual delivery
Service via Registered Mail – complete upon actual receipt or after the lapse of 5 days from the first notice from the postmaster whichever comes first
Service by Ordinary Mail – complete upon the lapse of 10 days after mailing
Priorities in modes of Service and Filing
Personal
Registered Mail
Proof of Filing
Proof of Service
Lis Pendes
Summons
Issued by the Clerk of Court
Purposes:
To Acquire Jurisdiction over Defendant
To Notify the Defendant
Service of Summons
Personal Service
By handling a copy to the defendant
By tendering the copy if the defendant refused to accept the summons
Substituted Service
By leaving copies at the defendant’s residence with a person of suitable age and discretion and resident therein
By leaving copies at the defendant’s office or regular place of business with some competent person in charge thereof
Service by Publication
Entity without a juridical entity
Can be sued but cannot sue
Prisoners
Officer of the jail/institution deemed deputized to act as a special sheriff
Minor and Incompetent
To the minor, insanse, and incompetent and his legal guardian or guardian ad litem, or either of his parents (in case of minor only)
Domestic Judicial Private Entity
President, Managing Partner, general manager, corporate secretary, treasurer, in-house counsel
Foreign Judicial Private Entity
Resident Agent, government official designated by law to receive summons for a foreign corporation (SEC), officers or agents in the Philippines
Public Corporation
Solicitor General if against the Republic of the Philippines
Local Chief Executive if against public corporations
Other officers as the law or court may direct
Unknown Identity or unknown whereabouts
By publication in a newspaper of general circulation and in such places and for such time as the court may order
Extraterritorial Service (defendant does not reside and cannot be found in the Philippines)
Personal Service outside the Philippines with leave of court
By publication in a newspaper of general circulation
In any other manner the court may deem sufficient
Contents
1. Name of the Court and names of the parties
2. Direction that the defendant answer within the time fixed
3. Warning for default judgment
In case of multiple defendants, each defendant shall be served with a summons
Served by
Sheriff
Deputy Sheriff
Officers of the court authorized to serve summons
Suitable person
Return
Sheriff can be presented in the witness stand to prove that he tried to serve the summons personally
Motion to Dismiss
Grounds
1. Court has no jurisdiction over the person of the defendant
2. Court has no jurisdiction over the subject matter of the claim
3. Venue is improperly laid
4. Plaintiff has no legal capacity to sue
5. Litis Pendentia between the same parties and the same cause
Same Parties or interest
Same Rights and reliefs prayed for
Res Judicata will take effect on the other case
6. Cause of action is barred by prior judgment or statute of limitations
Prescription
7. Pleading states no cause of action
Cause of Action
Plaintiff’s right
Defendant’s duty to respect that right
Breach of Defendant’s duty
Hypothetical admission only (that the allegations are true)
8. Claim or demand has been paid, waived, abandoned, or otherwise extinguished
9. Statute of Fraud
If not reduce to writing (except if there is partial fulfillment)
Agreement no to be performed within a year from its execution
Special promise to answer for the debt, default, or miscarriage of another
Agreement made in consideration of marriage
Sale of Real Property or interest therein
10. Condition precedent not complied
Dismissal that will bar refilling
Barred by prior judgment (res judicata)
Paid, waived, abandoned, or otherwise extinguished
Statute of Frauds
Dismissal of Actions
Notice of Dismissal
Plaintiff files a Notice to Dismiss without prejudice, unless otherwise indicated
Defendant can file a Notice to Dismiss if he becomes a third party plaintiff
With prejudice if the plaintiff cause the dismissal of that same action in a court of competent jurisdiction
Court has nothing more to do but to issue a confirmatory order of dismissal
Motion to Dismiss
Plaintiff files a Motion to Dismiss
Must have Notice of Hearing
Litigated Motion
Dismissal Due to Plaintiff’s Fault
Always with prejudice
No justifiable cause for failure to:
Appear on presentation of evidence in chief
Prosecute for unreasonable length of time
Unreasonable length of time
Depends upon the circumstances of each particular cases
Sound discretion of Court
Comply with rules and or order of the court
Pre-Trial
After the last pleading was filed
Mandatory
It is the duty of the plaintiff’s counsel to moved for pre-trial, clerk of court will moved for pre-trial in default of the plaintiff’s counsel
Both parties must file their pre-trial brief three days before the pre-trial conference
If the case is mediatable it will be refer to mediation board, if it failed it will be refer back to the court
Pre-trial order is mandatory, the reckoning period of 10 days to file memorandum in a summary procedure
The SPA should contain the enumeration in Rule 18, Sec. 2
You cannot change your theory first time on appeal
Last pleading is usually the reply, or if no reply it’s the answer
Plaintiff can only be put in default only at the motion of the defendant
The SPA must be properly worded
Failure to file a pre-trial brief will have the
Intervention
A third party is allowed by the court to appear in a proceeding where that third party is not an original party
Intervention is different from a third-party complaint, intervention-third person wants to join the original parties; third-party complaint-original parties want a third person to join the proceeding
Intervention is not a matter of right
Requisite to grant motion to intervene
Whether or not the intervention will unduly delay or prejudice the adjudication of rights of the original parties
Whether or not the intervenor’s rights may be fully protected in a separate proceeding
Who may intervene
Legal interest in the matter of litigation; or
In the success of either of the parties; or
An interest against both; or
Is so situated to as to be adversely affected by the distribution or other disposition of property in the custody of the court
Intervention is at any time before the trial court renders a decision
15 days to file an answer to intervention after receiving the order granting the motion to intervene
Calendar of Cases
Clerk of Court take charge of calendaring cases
Raffle is the mode of assigning cases
Subpoena
Subpoena ad testificandum
Subpoena duces tecum
Viatory right – the right to decline the subpoena if leaving 100 kilometers from the court that issued the subpoena, remedy is to take a deposition in the court where the person leave
Viatory right is applicable only in civil cases
Who may issue
The court before the witness is required to attend
The court before the deposition is to be taken
Officer or body authorized by law to issue subpoena in connection of an investigation
Any justice of SC or CA in any case or investigation within the Philippines
Grounds to quash
Subpoena ad testificandum
Witness is not bound because of viatory right
Kilometrage and witness fee not paid
Subpoena duces tecum
It is unreasonable and oppressive
Relevancy does not appear
Fails to advance the reasonable cost of production
Computation of Time
Exclude the first day, include the last day
If the last day falls on a Sunday or holiday, the last day will be the next working day
Fresh Period Rule applies to Rule 40, 42, 43, 45
Modes of Discovery
1. Depositions Pending Action (Rule 23) (with leave of court if answer was not yet filed)
2. Depositions before action or pending appeal (Rule 24) (with leave of court if answer was not yet filed)
3. Interrogatories to parties (Rule 25) (with leave of court if answer was not yet filed)
4. Admission by adverse party (Rule 26) (with leave of court if answer was not yet filed)
5. Production or inspection of documents or things (Rule 27) (always with leave of court)
6. Physical and mental examination of persons (Rule 28) (always with leave of court)
Legal consequences for the refusal of a party to comply (Rule 29)
Classifications:
1. Depositions on oral examination
2. Depositions upon written interrogatories
3. Depositions de benne esse (Rule 23 – pending action)
4. Depositions in perpetuam rei memoriam (Rule 24 – taken to perpetuate evidence for purpose of an anticipated action or further proceedings in a case on appeal) (applicable only to civil cases)
Purpose:
Knowledge of the evidence of the adverse party may facilitate an amicable settlement or expedite the trial of a case
Benefits:
1. It is of great assistance in ascertaining the truth and preventing perjury because the witness is examined while his memory is still fresh, he is generally not coached, he cannot at later date contradict his deposition, and his deposition is preserved in case he becomes unavailable;
2. It is an effective means of detecting and exposing fake, fraudulent and sham claims and defenses;
3. It makes available in a simple, convenient and often inexpensive way facts which are otherwise could not have been proved later;
4. It educates the parties in advance of trial and on real values of their claims and defenses, thereby encouraging settlements out of court;
5. It expedites the disposal of litigations, saves the time of the court and helps clear the dockets;
6. It safeguards against surprise at the trial, prevents delays, simplifies the issues, and thereby expedites the trial; and
7. It facilitates both the preparation and the trial of cases
Depositions Pending Action
By leave of court after the jurisdiction has been obtained but before the answer is filed and the issues are joined
Without leave of court after the answer was filed
Deponent may be examined regarding any matter not privileged and is relevant to the subject of the pending action
May be used against any person present or represented at the taking of the deposition
Sanctions
Actions may be dismiss
Contempt of court
Default of disobedient party
Payment of reasonable expenses
Arrest of disobedient party
Refusal to allow the disobedient party of support to its defenses
Striking out of the pleadings of the disobedient party
Trial
Order of Trial
Plaintiff presents testimonial evidence
Defendant cross-examine the plaintiff’s witness
Plaintiff formally offers documentary evidence
Defendant objects or comments on the documentary evidence
Evidence in nullity cases can only be presented to the judge
Consolidation
Common question of fact and/or law
To avoid multiplicity of suit
Expedite the trial
One judgment
Before trial commences
Severance
To avoid prejudice
Trial by Commissioner
Based on the agreement of the parties
By referral
Commissioner includes auditor
Instances
Long account
Taking of account is necessary
Question of facts other than those set in the pleadings and trial
Can be held after judgment or during the execution of judgment
Commissioner becomes an officer of the court
Powers of Commissioner
Regulate hearing
Can issue subpoena
Can swear witness
Can rule on the admissibility of evidence, unless disallowed
The court may adopt the report of petitioner in toto or just a part of it or not even a part of it
FINALS
Rule 36
A judgment or final order determining the merits of the case shall be in writing and 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 court
It is deemed a decision after it was submitted to the clerk of court, otherwise it is just a draft
Dispositive portion is the subject of execution
Body of decision contains the facts and the law and opinion of the judge (obiter dictum)
Motion to Approve Compromise Agreement
Compromise Judgment
Motion to Set Aside the Compromise Agreement
Motion to Set Aside the Compromise Judgment
Appeal (if denied)
*Or Have it Annulled on grounds of lack of jurisdiction, due process, extrinsic fraud
Interlocutory orders need not need to comply on the requirements of stating the facts and law where it was based
Judgment must go with the pleadings filed, if it is not raised in the issue, the court cannot tackle it in the decision unless it was openly discussed during the trial
Motion for Clarificatory Judgment (when the judgment is sketchy, but cannot be set aside because the judgment is not void and it is already final)
The date of finality between parties starts to run after such party received the judgment
Several Judgments is proper only when the liabilities of every parties can be clearly distinguished from each and every party (joint liability-applicable, solidary liability-not applicable)
Separate Judgments (in case of legal separation, partial judgment can be rendered on custody and support based on compromise agreement, but the legal separation shall be litigated)
Only SC can issue minute resolution and consider it a decision on merits
Rule 37
Motion for New Trial/Reconsideration
Must be file within the reglementary period (15/30 days in multiple appeals because there is a need of record of appeal)
File in the court of origin
Motion for New Trial
Based on FAME+Affidavit of Meritorious Defense
Newly discovered evidence after trial that will alter the course of trial
Motion for Reconsideration
Facts and laws that do not justify the decision must be stated
Evidence is not sufficient
Not based on facts and law
No need of affidavit of meritorious defense
Extrinsic Fraud
Pro forma pleadings is allowed in motion for reconsideration
Pro forma pleadings (i.e. no notice of hearing) does not toll the running of prescriptive period
Contents of Motion
Affidavits of merits (a)
Affidavits of witnesses (b)
Motion for new trial if granted will result to new trial
Motion for reconsideration if granted will result to new judgment
Partial Reconsideration / New Trial – rest is final and executor
Rule 38
Refer to judgments, order, and other proceedings
Filed in the court of origin
Petition for Relief from Denial of Appeal
Extra-ordinary writ
Cannot be interrupted or extended
FAME
Time of filing
Within 60 days from knowledge of judgment and not more than 6 months after the entry of judgment
FAME
Meritorious Defense
It is not an initiatory pleading but a remedy
It is a petition not a motion
It must be verified but does not need to be accompanied with Certificate of Non-Forum Shopping
Two Stages
To determine whether the judgment will be set aside
If yes, hearing on the merits of the case
If no, petition is dismissed
Petition of Relief from Judgment is not allowed in CA and SC
RULE 39
Execution is the remedy provided by law for the enforcement of judgment
Writ of Execution is a judicial process issued to sheriff authorizing the sheriff to execute the judgment Writ of Execution may be a matter of right or motion of the winning party Final judgment – end of litigation, the court has nothing more to do
(writ of execution is discretionary) Final and Executory Judgment – after the lapsed of the reglementary period to appeal
(writ of execution is a matter of right) A writ of execution can be issued if the judgment is final and executory
Exceptions to the general rule that it can be issue as a matter of right Unjust Equitable grounds Preliminary injunctions prayed before was issued Judgment was novated Judgment is dormant (not executed within 5 years)
It is always the trial court that will issue the writ (court of origin) It is the dispositive portion that is controlling and executable Motion to Quash the Writ of Execution if it is inconsistent with the judgment (i.e. there is no exemplary damages in the decision but the
writ has exemplary damages) Petition for Relief of Judgments, Orders and other Proceedings is the remedy in case of extrinsic fraud A writ of execution may be issued on an interlocutory order in case of support pendente lite if the other party does not comply with the
interlocutory order Stay of Discretionary Execution is not allowed if the writ of execution is a matter of right Stay of Discretionary Execution is allowed if the writ of execution is a matter of discretion by filling a supersedeas bond There is no need of supersedeas bond on final and executory judgment Judgments on injunctions, receivership, accounting, support, and other immediately executory orders cannot be stayed Section 3 is discretionary Section 4 is mandatory, cannot be stayed pending appeal Execution by motion is within 5 years from the entry of final judgment Execution by independent action is after the lapse of 5 years but within 10 years The decision of Court of Appeals is not immediately executory (JBL Case) In computing the time, exclude the time when the judgment was stayed because of the agreement of the party or dilatory tactics of the
losing party (Republic Case) If the judgment obligor died after the entry of judgment but before levy of his real or personal property and the case involves real action
writ of execution will still be issued If the judgment obligor died after the entry of judgment but before levy of his real or personal property and the case involves money
claim (personal action) writ of execution will not be issued File it as a claim to the estate
If the judgment obligor died after levy, writ of execution will be issued If the obligor died before judgment in a money claim, proceeding will continue against the legal representatives of the obligor
Execution of judgment will be claim to the estate of the obligor In cases of tort, the action survives even after the death of the parties In Sec 8, the writ of execution must specifically state the amount to be executed Levy pertains to real properties Garnishment pertains to bank deposits Judgment maybe for money (Sec 9), Specific Act (Sec 10), Special Judgment (Sec 11) Sec 11 refers to performance of special acts like support Contempt is remedy available in Sec 11 Disobedient judgment debtor can be held liable for contempt in special judgment (Sec 11) Purchaser shall have all the right after the levy only In levy the sheriff sets apart the property of the judgment debtor, no third person involved In garnishment the sheriff serves the notice of garnishment to the garnishee who is a third person An attachment is a provisional remedy, the essence of which is to ensure that a property of the would be judgment debtor will satisfy the
judgment of the court (not available in all cases) Property exempt from execution, must be raised as defense in order to be availed Must be connected from occupation Return of the writ is the report of the sheriff to the court Life of writ is for 5 years The importance of notice is to give judgment obligor to have the chance to redeem his property
If the notice is not faithfully followed, it can be set aside The remedy to exclude property of a third person from being levied upon is to execute an affidavit (terceria), or for the judgment oblige to
post a bond to indemnify the sheriff Remedies in Sec 16 is to make an affidavit terceria, post a bond (judgment oblige), go after the bond within 120 days, and independent
action if a stranger to the case (Mariano v. CA) Public auction must be preceded with a notice which must be faithfully followed, and auction is called off if the judgment debtor pays off
before the auction sale Judgment obligor cannot participate on auction sale Judge, lawyers, and other court officials cannot bid on the auction If the sale is irregular (i.e. notice was not followed), it can be set aside Judgment obligee can bid but need not pay the amount of his bid if it does not exceed the amount of debt, unless if there is a third party
claim, judgment obligee should pay in cash Adjournment of sale – to any date or time as agreed upon, or from day to day Certificate of sale is not required if the property is capable of manual delivery Certificate of sale is required in case of personal property not capable of manual deliver (i.e. a house erected in a lot not owned by the
owner of the house) Deed of Sale will be executed only after the lapse of one year for a judgment debtor to redeem his property, in the meantime certificate
of sale will be the evidence of sale Certificate of sale must be annotated to the title of the real property for the prescriptive period of one year to run No redemption in sale of personal property The real property sold can be redeem by the judgment debtor (includes his successors and assigns) or the redemptioner who has a
subsequent lien (creditor with lien) Redemptioner has 1 year to redeem if he is redeeming for the first time and 60 days if he is redeeming it from another redemptioner Judgment obligor can sell his right to redeem his real property Right to redeem cannot be subject to levy if it will defeat the purpose of redemption But an unexercised right of redemption can be subject to levy (junior encumbrancer) because the judgment obligor can still redeem it
within a year One of the solidary debtors cannot be considered as redemptioner because there is no subsequent right To be a redemptioner, the lien must be other than and subsequent to judgment where the property is sold The one year period is equal to 360 days only (Civil Code) Once the judgment obligor exercise his right to redeem, the redemptioner cannot exercise his right to redeem The right of redemption is alienable right but cannot be subject of levy by the judgment obligee in the same case The payment must be in whole amount Offer to redeem is not equal to redemption Offer must be accompanied with the tender of payment Proof must be presented if it is the redemptioner who is redeeming Proof is not needed if it’s the judgment debtor who exercises the right to redeem The right to exercise the option what property to be levied must be exercised before the levy (Solar v. Inland) Judgment obligor retains the possession of the property within one year after the execution sale Judgment obligee by way of injunction may petition to the court to restrain the judgment obligor to commit wastage in the property Judgment obligor is entitled to the rentals and fruits of the property if the property is in the possession of a tenant within the period of
redemption The last redemptioner is entitled to the possession after the lapse of sixty days from the last redemption if he redeemed it from another
redemptioner Writ of possession cease to be ministerial if a third party is in possession of the property who has an adverse claim to the property and the
court must conduct a hearing to determine the nature of the adverse claim Writ of Conveyance transfers the right of judgment obligor to the purchaser Deed of Conveyance is executed by the officer who made the sale (sheriff) or his successor in office The purchaser may recover the purchase price from the judgment debtor if the purchaser cannot take possession of the property after the
deed of sale was executed, or evicted from the property because of the irregularity in the conduct of sale (defect on notice or publication), or there is a reversal of judgment (annulment of judgment under Rule 47 within 4 years)
The purchaser may sue the judgment creditor or may on motion and after notice may the original notice revived this time in his name (substitution of party)
If there are several defendants, reimbursement can be claimed if the property sold exceeds the proportion of one of them, or one of them pays more than his share, or if a surety pays
Remedies in aid of execution Examination of judgment obligor when judgment unsatisfied (Sec 36)
File a motion for the examination of judgment obligor to elicit from him where are his properties Examination of obligor of judgment obligor (Sec 37)
The debtor of the judgment obligor is summoned before the court to elicit from him what properties the judgment obligor is under its possession
If the debt is denied, the court shall apply Rule 39, Sec 43 File a case asking the court to allow you to sue the obligor of the judgment obligor (this will make the
judgment obligee to become a real party in interest) If the debt is not denied, the court may order garnishment applying Rule 39, Sec 36 Enforcement of attendance and conduct of examination (Sec 38)
By way of subpoena Only in the court within the province where the defendant resides (remedy: take deposition)
If only the writ was returned unsatisfied makes this remedy available (Sec 37) Appointment of receiver (Sec 41) Obligor may pay execution against obligee Sale of ascertainable interest of judgment obligor in real estate
If the interest can be ascertain without controversy Effect of judgment or final orders rendered by Philippine courts
Judgment in Rem Specific thing
Conclusive upon the title to the thing Probate of a will or letters of administration of estate
Prima facie evidence of the death Judgment in Personam Doctrine of Res Judicata
Final judgment or order (final and executory) Court has jurisdiction over the subject matter and the parties Judgment is on the merits
When there is nothing else to be done Identity of the parties (same parties or same interests), subject matter (the thing, the contract which is directly the
subject of the action), identity of causes of action (based on the same delicts even if the remedies are different) Barred by former judgment (Rule 39, Sec 49 (b))
Same parties, subject matter, cause of action Conclusiveness of judgment (Rule 39, Sec 49 (c))
The evidence presented in the first case can be used in the second case (Oropeza v. Allied Bank) Substantial identity of party but different causes of action the res judicata applicable is “conclusiveness of
judgment” What was established in the first case is conclusive in the second case Minute resolution can be source of res judicata (Philippine Health Providers v. CIR)
Effect of Foreign Judgment Suit incapable of pecuniary estimation (Mijares v. Ranada) File a petition for enforcement of foreign judgment Enjoys presumption of validity and regularity Defendant has the burden of proof that there was no compliance of the foreign law The nationality becomes essential only in the date of the decree of divorce and not on the date of filing of the petition to
divorce (Bayot v. CA) The divorce decree is recognized but the legal consequences of the divorce may be litigated again if there is a showing that the
other party was not given a chance to represent his side (Roehr v. Rodriguez) The judgment itself is the best evidence of judgment
The judgment must be published The foreign judgment is a presumptive evidence of a right Foreign judgment, in order to take effect in the Philippines, the plaintiff must file a case to enforce that foreign judgment
APPEALS
Rule 40
An Ordinary Appeal is an appeal from a judgment of lower court on questions of facts or law or mixed questions of law and facts MTC – RTC (original jurisdiction)
Appellant v. Appellee Can be both appellant if both parties appeal File a Notice of Appeal with the court that rendered judgment or final order Notice of Appeal must contain:
o Partieso Order
Must served notice to the adverse party Appeals on Special Proceedings
o Notice of Appeal (within 15 days)o Record of Appeal (within 30 days)
Full names of parties Judgment and final order appealed from Chronological order, copies of pleadings, motions, related to the appealed judgment Timeliness of the appeal Issue of fact raised and evidence Index if more than 20 pages Copies to adverse parties
Ordinary appeal is a matter of right, all records are elevated, Petition for review is a matter of privilege, no records are elevated Payment of docket fee is with the clerk of court that render the appealed judgment, non payment is ground for dismissal of appeal Sec 8
o RTC affirms – RTC will try it on merits
Rule 41
Different modes of appealo Ordinary appeal (Rule 41)
RTC – CA (questions of facts or law or mixed questions of law and fact) (RTC exercising original jurisdiction) (Notice of Appeal) (Serve copy to the adverse party) (15/30 days)
o Petition for Review (Rule 42) RTC – CA (questions of facts or law or mixed questions of law and facts) (RTC exercising appellate jurisdiction)
(Verified Petition with CA) (Serve copy to the adverse party and RTC) (15 days)o Appeal by review (Rule 45)
RTC – SC (questions of law only) (Verified Petition with SC) (Serve copy to the adverse party and lower court) (15 Days)
What cannot be appealedo WE PAID
Fresh 15 day Rule Appeal from Rule 65 should be by Ordinary appeal because Rule 65 is a special independent civil action MR / MNT must contain a notice of hearing and proof of service
Rule 42
Perfection of appealso As to the Party – upon filing of notice of appealo As to the Court – after the appeals is perfected as to the party appealing and after the period to appeal expired and can
exercise residual power so long as the records were not transmitted to the appellate court Prior to the transmittal of records, courts can exercise residual powers Appeal can be withdrawn, but he cannot in order to revive jurisdiction of the court file an MR or MNT Appeal by notice of appeal – court loses jurisdiction over the case Appeal by record on appeal – court loses jurisdiction over the subject matter which was being appealed To perfect an appeal, the following must be complied [RP v. Sps. Luriz (26 January 2007)]
o Notice of appeal o Serve a copy to adverse partyo Payment of docket fee
No need to file a second notice of appeal
In cases of penalty of death or reclusion perpetua, ordinary notice of appeal to CA, automatic review to SC (People v. Abon, GR 169245)
Requirement as to Formo Full name of partieso Timeliness of appealo Issues involvedo Argumentso Certified true copies of the judgment or order being appealedo Relevant pleadingso Verification and Certification of Non-Forum Shopping
Reply and Rejoinder is not a matter of right (wait for court order if required to file) RTC records need not be elevated to CA (discretionary on the CA) because the RTC may still issue a writ of execution pending appeal
Rule 43
Instances when CA can entertain pure questions of law onlyo Rule 42 (ruling of the RTC exercising appellate jurisdiction)o Rule 43 (ruling by quasi judicial agency)
Even appealed, it will not stay the award, remedy TRO and writ of preliminary injunction Appeal is taken by filing a verified petition to CA, pay the docket fees, and proof of service to the adverse party and the lower
court/agency that render the judgment (do not implead the court or tribunal) Contents
o Name of Partieso Facts and issueso Duplicate original and certified true copies of the assailed resolutionso Copies of relevant documentso Verification and Certification of Non-Forum Shopping
Action by the CAo No summons will be servedo CA may require respondent to file a comment
Effect of appealo Award is not stay unless ordered by CA
Copies of the pleadings need not be certified true copies
Rule 44
Appellant v. Appellee (if both parties appealed, both are appellants) Appellant’s Brief – 45 days within which to file from the notice of the clerk of court of the completion of transmittal of records Appellee’s brief – 45 days from the receipt of the copy of appellant’s brief Appellant’s reply brief – 20 days from the receipt of appellee’s brief Failure to file appellant’s brief is a ground for dismissal Failure to file appellee’s brief is not a ground for dismissal Parties cannot change their theory on appeal, exception is if there will be no further presentment of evidence (Lianga Lumber v.
Lianga Timber) Parties that did not appeal will not be inured to the judgment on appeal unless there is a community of benefit that will necessary
inure to them Gov’t of Kingdom of Belgium v. CA (GR No. 164150, April 14, 2008)
o Power to dismiss the appeal on the ground of failure to file appellant’s brief is discretionary and not mandatory so long as it is not whimsically exercised
Banco De Oro v. Transipek (GR No. 181235, July 22, 2009) o Law of the Case has been defined as the opinion delivered on a former appeal
Maricalum Mining v. Remington Industrial (GR No. 158322, February 11, 2008)o Commonality of interest means an appeal of one is appeal of all if there is vicarious liability
Rule 45
15 days, payment of docket fees, discretionary
Purely legal Petition for extension of time is allowed Exceptions where questions of facts can be reviewed
o Conclusions is grounded on speculations, surmises and conjectureso Manifestly absurd or impossibleo Grave abuse of discretion of the factso Misapprehension of factso Conflicting findings of facts between RTC and CAo RTC exercising appellate jurisdiction under Rule 42 and 43, appeal is to CA even on purely questions of law
Differences of Rule 45 and 65o Dismissal in 45 is final and executory, dismissal in 65 can be re-filed if still within reglementary period
Rule 65 cannot be a substitute for lost of appeal (41,42,45)
Rule 46
Applies to Certiorari, Prohibition, and Mandamus Service of order not of summon is the mode of acquiring jurisdiction Respondent cannot be held in default for failure to file answer
Rule 47
Applies to annulment of judgment, final orders, resolutions Grounds
o Extrinsic fraud (4 years from discovery)o Lack of jurisdiction (laches – inexcusable delay to exercise once right - or estoppel)o Denial/Absence of due process (Springfield case)
Contentso Verified petition
Action by Courto Dismissed if there is no substantial merito Motion to dismiss may be filedo Writ of preliminary injunction may be issuedo Reception of evidence may not be referred to RTC judge
Petition for annulment of judgment must say why not able to avail of the other remedies and should not be attributable to the petitioner
Rule 47 may still be availed even the judgment was fully implemented If annulled for lack of jurisdiction – re-file to proper court If annulled for lack of jurisdiction over the person – file to the same court after acquiring jurisdiction to the person and provided that
the court has jurisdiction over the subject matter Annulment of MTC orders must be file to RTC as an ordinary civil action, RTC orders shall be annulled in CA
Rule 48
Preliminary Conference in the Court of Appeals In original actions or in cases of appeals (motion for new trial on the ground of newly discovered evidence) It is the CA who will call the conference Mandatory
Rule 49
Oral Arguments before the Court of Appeals The CA or by petition of the party Only one counsel will argue, unless authorized to have more than one counsel No notice of hearing on the motion is required (CA and SC), hearing on the motion is discretionary Objection to the motion may be filed within 5 days from service
Rule 50
Dismissal of Appeal Grounds are not automatically dismiss the appeal, it is within the discretion of the court to grant dismissal Wrong mode of appeal, case dismissed Appeal may be withdraw as a matter of right before the appellee’s filing of the appellee’s brief Filing means the filing in court and not the service to the appellant CA can received evidence SC will not receive evidence but it can re-evaluate the evidence falling on the exceptions (misapprehension of fact) Promulgation of judgment is the delivery of the signed copy to the clerk of court Unpromulgated judgment is not a judgment in contemplation with the law Execution of judgment if immediately executory there is no need to wait for 15 days to file motion for execution Motion for Execution pending appeal may be filed before the RTC if the records are still in the RTC, otherwise to the CA if the records
had been transmitted to the CA, the CA will just issue an order to RTC to execute the decision
Rule 52
Motion for Reconsideration in CA Within 15 days from the receipt of order No second motion for reconsideration is allowed
Rule 53
Motion for New Trial may be filed anytime after appeal from the lower court has been perfected and before the CA loses jurisdiction over the case
The only ground is newly discovered evidence Newly discovered evidence means an evidence which could not have been discovered prior to the trial in the trial court and which
can change the outcome of the case Shall be accompanied by affidavit CA may received evidence in motion for new trial Corroborative and cumulative evidence is not a newly discovered evidence
Rule 56
Original Cases cognizable by SCo Petitions for certiorari, mandamus, quo warranto, habeas corpuso Petitions affecting ambassadors and other ministerso Petitions for discipline of judges and attorneys
Appealed Caseso Petition for Review on Certiorario Grounds for dismissal
Failure to file within the reglementary period Etc
Cases to be decided en banco Supreme Court Circular No. 2-89
PROVISIONAL REMEDIES
Temporary remedies only Ancillary actions, need a principal action except in support pendente lite Kinds of Provisional Remedies
Preliminary Attachmento May be availed at any stage but before entry of final judgment, post bond, can be dissolved by counterbond
Preliminary Injunction post bond, can be dissolved by counterbond Receivership
o May be availed even after final judgment, post bond no counterbond Replevin
o Must be availed before the defendant filed an answer, post bond, can be dissolved by counterbond Support Pendente Lite
o May be sought anytime even first time on appeal, no bond
Rule 57
Purposes: o is to seize the property of the debtor in advance of final judgment and to hold it for purposes of satisfying the said
judgmento to enable the court to acquire jurisdiction over the action by actual or constructive seizure of the property in those
instances where personal services of summons on the creditor cannot be affected (action quasi in rem) Insolvency is not a ground for the issuance of the writ of preliminary attachment Must be for the recovery of a specified sum of money Can be avail by any party, even a defendant can apply for a writ of preliminary attachment in connection with his permissive or
compulsory counter claim If the judgment is final and executory, do not ask for a writ of preliminary attachment rather for a writ of execution of judgment Can be issued ex parte, affidavit and bond required, notice and hearing discretionary to the court Stages
o Order granting the writ of attachment (can be avail even before the court acquire jurisdiction over the defendant)o Issuance of writ of attachment (can be avail even before the court acquire jurisdiction over the defendant)o Implementation of writ of attachment (the court must have jurisdiction over the defendant, can be serve together with
the service of summons and copy of complaint to the defendant) Exceptions: Rule 57, § 5, ¶ 2
Applicant’s bondo Amount to be determined by the courto The bond will pay all the costs which may be adjudged to the adverse party and all damages by reason of wrong
attachment o Motion for reduction of partial discharge if the attachment is excessively high
Manner of attachingo Same manner in execution
Discharge of Writ of Attachmento Counterbond was posted or a cash deposit was madeo Attachment was improper or irregularly issuedo The attachment is excessiveo The property is exempted from executiono Lost is case
Counter-bondo Counter-bond responds for the payment of the judgment covered by the attaching creditor regardless of the wordings of
the bondo Applicant’s bond responds for damages resulting from the attachment
An order for execution pending appeal can be enforced against the counter-bond Merits on the complaint are not triable in a motion to discharge an attachment Rule 39, § 16 is identical Writ of execution is unsatisfied, the counter-bond will be automatically attached without any need to file separate pleading Damages must be prove in order to go against the applicant’s bond Cannot be subject of an independent action (Rule 57, § 20)
o Exceptions Principal case was dismissed and damages were suffered by reason of the attachment Damages suffered by third party
Calderon v. IAC 155 SCRA 531
Rule 58
Preliminary Injunction is an order requiring a party or court, agency or a person to refrain from particular act or acts (Prohibitive Injunction)
Preliminary Mandatory Injunction is an order requiring the performance of a particular act or actso Requisites:
Invasion of right Urgency
May be granted at any stage of the action before judgment or final order Validity
o Trial Court – 20 dayso Court of Appeals – 60 dayso Supreme Court – until further order
If granted ex-parte by the presiding judge on exceptional cases the validity is 72 hours only The purpose is to preserve status quo It is a proceeding in personam (binding between the parties only) You can file a complaint for injunction asking for TRO or Preliminary Injunction The grounds must be stated in the application for preliminary injunction Preliminary Injunction is an interlocutory order (not appealable, remedy if there is grave abuse of discretion – Rule 65) Final Injunction is to permanently restrained a party, final order after trial Cannot be granted ex-parte Order granting permanent injunction is subject to appeal Injunction (Rule 58) is different from Prohibition (Rule 65) which is directed upon the court or tribunals, and the issue is jurisdiction
and it is always the main action (Original Special Action for Prohibition) Injunction is in the jurisdiction of RTC Writ of Preliminary Injunction may be granted where the action is pending SC cannot entertain an original action for Writ of Preliminary Injunction but can be entertained in its appellate jurisdiction Limitation of granting WPI is within the territorial jurisdiction of the court where the action lies WPI cannot be issued in labor cases (exclusive jurisdiction of NLRC) No WPI against SSS, GSIS, etc RTC cannot issue a WPI against other RTC, exception if it will not affect third person estranger to the suit (accion terceria) Inferior courts can issue WPI in forcible entry or unlawful detainer under BP 129 No injunction in PD 605 No injunction in government projects (RA 8975) WPI is applicable in continuing acts Grounds (memorize)
o Entitlement to the reliefo Will result to injusticeo Some acts are in violation of the rights of the applicant that will tender the judgment ineffectual
Requirementso Verified applicationo Bond, unless exemptedo TRO and/or WPI raffle must be in the presence of adverse party
Exceptions same in WPA (cannot be served personally, etc.) TRO is a restraining order which may be issued upon filing of injunction until the hearing for a WPI can be had TRO (20 days) summary in nature Grant or denial of TRO does not mean automatic grant of WPI Status Quo Order – to maintain the last, actual, peaceable and uncontested state of things that preceded the controversy
o No need for bondo May be granted motu propio on equityo Only available in the Supreme Court
The exception to the rule that PI cannot be issue without notice is if there is Great and irreparable injury (not susceptible of mathematical computation)
If not resolved within 20 days, TRO is deemed vacated and not extendible CA no ex-party application Executive Judge will issue the order ex-party TRO valid for 72 hours, not the presiding judge where the case lies Service instead of Notice (service is from the receipt of summons) Applicant’s bond amount depends upon the sound discretion of the court conditioned to address all damages that may be sustained
by the adverse party by reason of the issuance of TRO/WPI Remedies
o Certiorari against preliminary injunctiono Appeal against permanent injunction
When refuseo No ground or insufficient bondo Counter-bond (to go against the bond Sec 20, Rule 57)
Issuance is different from dissolution
Rule 59
Receivership is the remedy, receiver is the person appointed by the court which need not necessary be the party applying for receivership
Remedy if the property is in danger of being wasted or dissipated or materially injured The purpose of the receiver is to take care of the property Can be availed after judgment to aid if the judgment is returned unsatisfied or the judgment obligor refuses to apply his property Can be availed pending appeal to be decided by the court of origin exercising its residual power Receiver becomes a court officer, loyalty is to the court not to the party May be a principal or ancillary action Receiver is appointed by the court for the purpose of preserving the property, must be sworn in, and act with diligence of a good
father of the family Applicant shall post a bond conditioned to be pay to the adverse party Appointment of a receiver is an interlocutory order and cannot be compelled by mandamus or certiorari except when there is a
grave abuse of discretion Applicant must have interest on the property Property is in imminent danger Receiver not stayed by appeal (like in injunction, attachment, accounting, support) No lien created Bond answer to damages that may be sustained by the other party Counter-bond is conditioned upon the payment of damages that may be suffered by the applicant Denial or Lifting
o Without sufficient causeo Adverse party post a bondo Bond by applicant is insufficiento Counter-bond is insufficient
Powers of Receivero Shall have the power to defend and sue in his name (disinterested person who can bring action) in the administration and
preservation of the property but do not include act of conveyanceo Divide money and other propertyo May invest money if allowed by the court
Sanctionso Contempto Damageso Liable for the property
When terminatedo If no longer justified, but there must be proper accounting
Receiver must file a bond to answer if he commits malfeasance Judgment of receivership not stayed by appeal There is difference between Rule 39 (any property can have a receiver) and Rule 59, Sec 1 (subject of the case only can have a
receiver)
Rule 60
Replevin is available when the purpose is to recover possession of personal property unjustly detained Must be file before the filing of answer of the defendant Recovery of damages is only incidental, the main purpose is recovery Both party may avail this remedy Defendant must be in actual possession Rule 60 is different from Rule 57, Sec. 1 (c) where the property is only incidental or in the possession of a third person Extends to personal properties only, but not applicable if the property is in custodia legis Requirements
o Ownership and entitlement of propertyo That the property is wrongfully detainedo That the property has not been distrained or taken for a lawful purpose (tax, fine)
Bondo Double of the value of the propertyo Intended to indemnify the defendant
Defendant is entitled to the return of the propertyo If seasonably filed a redelivery bondo Plaintiff’s bond is insufficient
Claim by third party may be made in a separate action
Rule 61
Support Pendente Lite is availed at the commencement of the action and before judgment Must be file before the RTC Verified application Grounds
o When, where, you did it!o Must state the needs of defendant and the ability of the giver
5 days to file a comment accompanied by affidavits, depositions or other authentic documents Both parties can ask for support Will not be granted (i.e. case of adultery, impotence, etc) Third party who paid the support can ask for reimbursement Remedy is certiorari (Rule 65) it is not appealable because it is an interlocutory order Support can be asked in criminal cases
SPECIAL CIVIL ACTIONS
Initiated by complaint Initiated by petition File in MTC, RTC, CA, SC Govern by the general rules on venue unless otherwise provided
Rule 62
Interpleader – if there is a conflicting claims between different parties over the same subject Interpleader is an original special civil action different from intervention which is only an ancillary action Court shall issue an order requiring the parties to interplead
Rule 63
Any person may file a petition for declaratory relief No need for a cause of action There must be no breach or violation of the statue being complained of Purpose is for declaration of right File before the RTC, not SC Other similar remedies
o Action for reformation of instrumento Action to quiet the title of the real property or remove the clouds therefromo Action to consolidate ownership under Art. 1607 of the Civil Code
Subject mattero Contract
Deed Will Contract Other written agreement
o Law Statute EO
Regulation Ordinance
Issueo Validity and Construction
Reliefo To declare the rights and duties of the petitioner
Requisiteo Subject matter must be the one mentionedo Terms of document and validity is doubtfulo No breacho Actual judicial controversy (ripe for judicial consideration)o Adequate reliefs not available
DR not available in unilateral actions like declaration of citizenship and court decisions Ripening of seeds – there must be a threatened litigation in the immediate issue which litigation is imminent unless prevented by
the DR Parties
o All persons who have or claim Non-joinder of parties is not a jurisdictional defect Notice to SOLGEN is required First paragraph – discretionary to court to declare rights Second paragraph – mandatory to court to declare rights The judgment in DR does not essentially entail any executional process as the only relief to be properly granted therein is declaration
of right Third party complaint cannot be entertained in DR since no material relief is sought Intervention allowed Counterclaim allowed Petition for DR can be converted to Ordinary Civil Action
Rule 64
COMELEC and COA only Applies only review of decisions, final order, resolutions of COMELEC and COA only Interlocutory order not included Mode of review may be brought to SC under Rule 65 Time to file is within 30 days from notice of judgment or final order or resolution sought to be reviewed Filing of Motion for New Trial or Motion for Reconsideration (if allowed by rules of the commissions concerned) shall interrupt the
running of 30 days Neypes case (fresh 15-day period) does not apply If motion was denied, the remaining period of the 30 day period shall be the remaining time for filing, but in no case it shall be not
less than 5 days (same as the motion for bill of particulars) Material Data Rule (timeliness of filing) Form of Petition and Fees
o Name of partieso Implead the commission involvedo Facts, issues, argumento Material dateso Prayer
Documents to be appendedo Certified true copy of the assailed decisiono Copies of relevant documentso Certification of Non Forum Shoppingo Proof of Service to the COA/COMELEC and adverse partyo Pay the filing fee
Subsequent Actiono SC issue Order to Comment which must be filed within 10 days from the receipt of the ordero Aggrieved party will file a commento Public respondent will only file a comment if ordered by the SC
Effect of filingo Will not stay the judgment or abate the proceedings (remedy is to seek for TRO/WPI)
Findings of fact of COA/COMELEC is final and non-reviewable provided that it is backed by a substantial evidence Neypes Ruling not applicable Petition must be verified and implead the commission concern Interlocutory orders and division orders are not reviewable
Rule 65
Certiorario Original Special Civil Action (this is not a mode of appeal)o Against any tribunal, board, officer exercising judicial or quasi-judicial power and not ministerial duties (remedy-
mandamus)o There must be a grave abuse of discretion amounting to lack or excess of jurisdiction over the subject mattero There must be no appeal or any plain, speedy and adequate remedyo Petition must be verifiedo MR is required before a petition under Rule 65 is allowedo Purpose is to annul the judgmento There must be a certified true copies of the orders denying the MTD and MRo Append other relevant documentso Get a TRO to stop the proceedings in the lower court because it will not stop the proceedings in the lower courto RTC, CA, SC concurrent jurisdictiono Must be accompanied by Certificate of Non Forum Shoppingo Filing of petition under Rule 65 does not stop the running of prescriptive period to file an answer (file an answer ad
cautelam)o Intended to correct an act performed by the respondent and extends only to discretionary actso Judicial function – power to determine the legal rights of the parties and undertakes to determine these questions and
adjudicate upon the rights of the partieso Without jurisdiction – no legal right to determine the caseo In excess of jurisdiction – there is grave abuse of discretion where respondent acts in a capricious, whimsical, arbitrary or
despotic manner in the exercise of his judgmento It is an extra-ordinary remedy, if appeal is available, Rule 65 does not lie (exception is if the appeal in not adequate or
speedy remedy, or it is for special consideration [novel issues])o Not remedy for loss of appeal or error in judgmento Pro forma rule not applied in MR or interlocutory orders
Exceptions are patent nullity, urgent necessity, useless, deprived of due process, relief from judgment of arrest in criminal cases
o Questions of facts and law cannot be raised, only issue is whether there is grave abuse of discretion or lack or excess of jurisdiction
Prohibitiono To command the court a quo to desist from further proceedings in an action or matter specified thereino Preventive remedy, lies against judicial and ministerial actso Accompanied by TRO/WPIo Administrative remedies must be exhausted in order to be availed against officers in the executive departmento There must be no other plain, speedy, adequate remedy availableo MTD denied – remedy is Prohibition not Mandamus because the court exercises judicial function not ministerial function
Mandamuso Commanding a tribunal, corporation, board, officer to perform an act which it unlawfully neglecto Exhaust administrative remedies
Damages may be awarded in Rule 65 When filed
o 60 days from notice of judgment, order, resolutiono 60 days from the denial of motion for new trial or reconsideration
Where filedo RTC – lower courts, corporations, officers, board
No prior service of a copy thereof to the adverse party
o CA – quasi-judicial agencies Must have proof of service
o SC – novel issues Must have proof of service
Partieso Public respondent – nominal partyo Private respondent – indispensable partyo A party not party to the case may file a comment
Respondent is required to submit memorandao In the RTC hearing on memorandumo In CA and SC no hearing on memorandum
Will not interrupt proceedings Petition for TRO/WPI Rule 65 can be availed in criminal cases but only to the civil aspects of the case (order granting demurrer to evidence can be
questioned via Rule 65)
Rule 66
Quo Warranto proceedings can be instituted in the RTC, CA, SC Can be instituted by the SolGen, Relator, Individual Party Remedy to try disputes with respect to the public office Individual may file a quo warranto case on his own under Section 5, Rule 66, no need for SolGen or leave of court but must aver his
entitlement to the position Individual may ask the SolGen to file a case for quo warranto with the permission of the court (Sec 3-4, Rule 66) Parties: usurper Venue: RTC (where the respondent resides if filed by the individual) (RTC of Manila if filed by SolGEn) CA, SC Period: court may reduce period of filing Judgment
o If guilty the usurper is ousted damages can be recovered winner can demand accounting (contempt)
o If not guilty Limitations
o Commenced within 1 year after the cause of such oustero Damages may be brought only for 1 year after the entry of judgment
Administrative remedies will not toll the running of 1 year period to file quo warranto Time is of the essence
Rule 67
Expropriation Deed of Absolute sale if no opposition from the private owner Expropriation Proceedings if there is opposition Venue of action is where the property lies or one of the properties lies Preliminary Deposit
o Plaintiff can enter in the propertyo The assed value of the property for purposes of taxationo Will form part of payment of just compensationo Can stands as indemnity for damageso Discretionary on the part of plaintiff, mandatory only in case the plaintiff wants to take possession of the propertyo Ministerial duty to the court to issue writ of possession after the deposit (remedy if denied by court is MR then
Mandamus)o Depository bank is PNB, 10% of the compensationo Mere notice, no need of hearing suffices for immediate entry to the property
Defenses and Objectionso No Objection
Entitled to all noticeso Objection
File answer No third party complaints Objections not raised is deemed waived but in the higher interest of justice, amendment can be done within
10 dayso Non filing of answer in the issue of just compensation will not result to declaration of default
Order of Expropriationo Lawful right to take the property sought to be expropriatedo Upon payment of just compensation to be determined as of the date of the taking of the property or the filing of the
complaint, whichever comes firsto Final order sustaining the right to expropriate can be appealedo Order on Just Compensation can also be appealedo 30 Days to appeal
Ascertainment of Just Compensationo Appointment of not more than 3 commissioners
Commissioner must take oath Can received evidence Can administer oath
o Formula Fair Market Value + Consequential Damages = JC Consequential Benefits > Consequential Damages = Fair Market Value is JC
o Payment of legal interest from the time of taking of the property to the time of actual payment No need for MR (discretionary) GR 56378 NPC v. CA Issue on conflicting claims may be decided by the court handling the expropriation proceedings (RP v. CFI of Pampanga) It must be used for the public use describe in the property Entry not delayed by appeal
o If reversed on appeal, restoration of propertyo Determine the damages suffered by defendant
Recording of judgment and must be registered to the RD to bind third persons Notes
o Barangay cannot expropriateo File in RTCo Implead all ownerso Consignation if there are multiple claimso No need of expropriation if the owner has agreed to the sale
Rule 68
Complaint shall set fortho Date of execution of the mortgageo Name and residence of the mortgagor and mortgageeo Description of the propertyo Amount unpaido Names and residences of persons claiming interest in the property
Filed in RTC where the land is situated May bring personal action for the amount due instead of foreclosure of suit, deemed waiver to foreclosure proceeding Parties to be joined
o Mortgagoro Occupant of the mortgaged propertyo Transferee or granteeo Junior encumbrancers (necessary party)
If not joined unforeclosed rights remain to him Equity of redemption not less than 90 days but not more than 120 days Susceptible of multiple appeals, must be filed with record on appeal No right of redemption except if with banking institution
Issuance of Writ of Possession is ministerial unless there are other adverse claims or the property is in possession of a third person If there are other claims, trial on ownership Motion of Confirmation of Sale
o Must have hearing on motion Consequences of Confirmation
o Cut-off of equity of redemptiono Registration of Final Deed of Sale to the RDo Cancellation of title in the name of the mortgagor and issuance of new title to the mortgagee or redemptioner
Deficiency Judgmento Allege
the judgment that No right of redemption/equity of redemption exercised Sale Amount realized in the sale
o When rendered Upon motion If the foreclosure sale did not satisfy the judgment
o If motion is denied MR Mandamus
If only third person mortgaged the property, only accommodated the debtor, but did not sign the promissory note or assume any liability to the debt, then in case of deficiency judgment, the third person in not liable for the deficiency
No deficiency judgment in extra-judicial foreclosures, remedy is to file a case for deficiency judgment
Rule 69
Involve multiple appeals, hence 30 days + record of appeal Allegations
o Nature and extent of titleo Adequate description of the real estate of which petition is demandedo Defendants
Personal property can be partition First order is order of partition
o If all parties agreed to partition, no need for a commissionero Reduce the agreement in writing of the partition and submit to the court for approvalo Record the agreement of the parties and the order of the court to Register of Deeds where the real property is located
Kinds of partitiono Voluntary, no need to go to the courto Compulsory under Rule 69
Venueo RTC where the property is located, or if several properties in several places, in the RTC of any of the places where the
properties Right to partition do not prescribe (no one can be compelled to be a co-owner perpetually)
o Exception acquisitive prescription Procedure after judgment
o Parties agree Submit deed of conveyance (agreement of partition)
o Parties disagree Appoint no more than 3 competent and disinterested commissioner who will propose the partition
The nature of action is in REM, to bind the interest of other persons The nature of the order of partition
o It is definitiveo It is appealable judgment
Court to appoint 3 competent and disinterest commissioners Commissioners required in expropriation and partition Commissioner may sell the property if it is the best for all the parties, which sell must be in a public sale Commissioner must submit a report
Taxes is divided among co-owners Registration to the RD is essential to bind third parties
Rule 70
Forcible Entryo Possession is unlawful from the beginningo Issue: who between the contending parties has better possession of the contested propertyo Venue: Municipal Trial Court, Metropolitan Trial Courto Rule on Summary Procedureo Instituted within one year from dispossession or from discovery of dispossession in case of stealtho No need of prior demand to vacateo Allege: (1) prior physical possession of the property by the plaintiff; (2) deprivation of said possession by another by
means of force, intimidation, threat, strategy or stealth Unlawful Detainer
o Possession is lawful in the beginning and becomes illegal after the expiration of contract of leaseo Issue: who between the contending parties has better possession of the contested propertyo Venue: Municipal Trial Court, Metropolitan Trial Courto Rule on Summary Procedureo Within one year after the last demando Need of prior demand to vacateo Allege: (1) prior physical possession of the property by the plaintiff is not a condition sine qua non; (2) there is a
withholding of possession or refusal to vacate the property by a defendant after the expiration of the contract of lease Accion Publiciana
o Issue: who has the better and legal right to possess, independently of the titleo Venue: RTCo Ordinary Civil Procedureo After the expiration of one year but within the period prescribed in the statute of limitation
Accion Reinvidicatoriao Issue: possession and ownershipo Venue: RTCo Ordinary Civil Procedureo Allege: (1) identity of the property; (2) plaintiff’s title to it
Who may institute proceedings?o A person deprived of the possession of any land or building by force, intimidation, threat, strategy or stealth (Forcible
Entry)o A lessor, vendor, vendee, or other person
It may be instituted against all kinds of land except agricultural land (agrarian court) Manner of dispossession must be alleged, or it may be dismissed for lack of jurisdiction Issue of possession
o Possession de facto only and not de jureo No res judicata on the issue of ownershipo The mere raise of issue of ownership will not divest the jurisdiction of the court
Rule 70, Sec. 2 applies only to unlawful detainero To pay or comply and to vacate
5 days to vacate in case of buildings 15 days in case of land Filing of action will be within one year from the demand to vacate Counting of days is by Article 13 of the Civil Code (1 year = 365 days; 12 months = 360 days) Demand is not required if
o Expiration of leaseo Enforcement of terms of contracto Defendant is intruder not lesseeo Month to month lease (better to send demand to vacate to avoid tacit renewal after 15 days from the expiration of lease)
When deemed accion publiciana or accion reinvidicatoriao No allegation on how they were able to enter the land
o Defendant refuses to vacate the land on the ground that he is the lessee of plaintiff’s predecessor-in-interest How demand is made
o Personally on the defendanto Written noticeo Posting of noticeo Serve by registered mail
Regardless of amount to be recovered, the MTC has exclusive original jurisdiction In case of failure of the defendant to file Answer, No motion to declare defendant in default but motion to render judgment base on
pleadings submitted is the remedy Failure of plaintiff to appear in preliminary conference, cause of dismissal of the complaint Dates:
o Filing of complaint, o 10 days to file answer from the service of summons, o preliminary conference not later than 30 days after the last answer was filed, o record of preliminary conference order within 5 days after the termination of preliminary conference o filing of affidavits and position papers within 10 days from the receipt of order, o Judgment will be rendered within 30 days from the issuance of record of preliminary conference order
No need of hearing for the receipt of testimonial evidence and adjudication is based on the pleadings Matter of ownership if passed upon by court is only provisional and cannot be barred by res judicata Writ of Preliminary Mandatory Injunction may be filed within 5 days from the filing of complaint
o If the appeal of defendant is frivolous or dilatoryo If the appeal of plaintiff is meritorious
Judgmento Plaintiff’s allegation is true, restitution of property, damages (arrears, rents, reasonable compensation) no moral and/or
exemplary damageso Defendant’s allegation is true, payment of costso Will not bind title or ownershipo Will not bar future actions between the same parties on ownershipo Appealable to RTCo Primary relief is recovery of possession, awards of damages is incidental only (can award amounts more than the limit of
its jurisdiction) Execution
o Immediate execution if rendered against defendanto To stay execution, defendant must
Perfect an appeal Within 15 days, RTC
File a superseadeas bond to be approved by the MTC By cash or surety in the MTC to answer the rents
Make monthly deposit to the RTC acting as appellate court of monthly rental, or at the rate determined by MTC
To ensure the payment of rental Amount determined by the inferior court Payed on the date of payment according to the contract or in the absence therof on the 10th day of
every montho RTC to CA or SC – immediately executor, cannot be stayed even with the paying of rents and superseadeas bondo Failure to pay monthly deposit pending appeal will result to the transfer of property to the plaintiff but will not prejudice
the appealo Execution pending appeal is governed by Sec. 8 of Rule 70 and not by Sec. 2 of Rule 39
Rule 71
Direct Contempt (Contumacious Acts)o Summary in nature, no need for hearingo Committed in the presence of or so near a court as to obstruct or interrupt the proceedings before the sameo Includes disrespect toward the courto Offensive personalities to othero Refusal to be sworn in
o Refusal to answer as a witnesso Refusal to subscribe to an affidavit or deposition when lawfully required to do so
Penalty for direct contempto P2,000.00 or imprisonment of not exceeding 10 days or botho P200.00 or imprisonment of 1 day
Indirect Contempto Is not committed in the presence of the court and can be punished only after hearingo Procedural requisite
Charge in writing hearing
In the nature of criminal action, proof beyond reasonable doubt is needed Remedy for Direct Contempt
o May not appeal o Either Certiorari or Prohibition is the remedyo File a bond condition to pay damages if adjudge liable for contempto Remedy of Habeas Corpus in extreme cases where the order is void
A person cannot be punished for disobeying a writ because the writ is directed to the sheriff Indirect contempt against SC shall be file before RTC, or the SC can take cognizance if it only involve question of law