Civil-procedure-final-exam-3.docx

Under Rule 39 of Rules of Court. 2. Execution Judgement and orders become final and executory by operation of law and not by judicial declaration. The trial court need not even pronounce the finality of the order as the same becomes final by operation of law. Its finality becomes a fact when the reglementary period for appeal lapses, and no appeal is perfected within such period. As a general rule, once a judgement has become final and executory, a writ of execution shall be ordered by the Court as it now becomes ministerial duty on the part of trial court to issue such. However, even the execution is a matter of right, the execution may stay as to the exception to the rule. (I-NEED-U-VIP) 1. 2. 3.

4.

5. 6. 7.

8. 9.

Where the judgement turns out to be Incomplete or Conditional Judgement is Novated by subsequent agreements of the parties Equitable grounds like a change in situation of the parties which makes execution inequitable (Supervening Facts Doctrine) Execution is Enjoined (Petition for relief from judgement or annulment of judgement with TRO or writ of preliminary injunction Judgement becomes Dormant, except support which can be executed by motion Execution is Unjust or Impossible. Where the judgement has already been executed by the Voluntary compliance thereof the parties When refusal to execute has become Imperative in the higher interest of justice When the execution is sought against Property exempt from execution under sec. 13 Rule 39.

Execution shall issue on motion. Hence, a judge may not order execution of judgement in the decision itself. In fact, even in judgements which are immediate and executory, there “must be a motion to that effect and a hearing called for the purpose. And also under the SC circular No. 24-94, a motion for issuance of writ of execution must contain a notice to the adverse party. Hence, the motion for execution cannot be issued ex-parte.

or final order appealed from and serving a copy thereof upon the adverse party. In Petition for Review under Rule 42, the appeal raises questions of fact, of law, or mixed question of fact and law from a judgement or final order of the RTC in its appellate jurisdiction. However, when the petitioner failed to move for new trial, or appeal therefrom, or file petition for relief against, or take other appropriate remedies assailing the questioned judgement, final order or resolution, the party may move for Annulment of judgement, final order, or resolution under Rule 47 provided that NO FAULT ATTRIBUTABLE to him. 5. A MOTION ATTACHEMENT

In a Petition for Review on Certiorari under Rule 45, the appeal raises purely question of law from a judgement or final order or resolution of the RTC in its original jurisdiction, the CA, the Sandigan Bayan, and the CTA en banc. In an Ordinary Appeal under Rule 41, the appeal raises the questions of fact or mixed questions of fact and law decided by the RTC in its original jurisdiction. The Appeal to the CA in cases decided by the RTC in its original jurisdiction shall be taken by filing a notice of appeal with the court which rendered the judgement

DISCHARE

PRELIMINARY

After a writ of attachment has been enforced, the party whose property has been attached, or the person appearing on his behalf, may move for the discharge of the attachment wholly or in part on the security given. Under sec. 12 of Rule 57, there are two procedures in discharging the PA. First, if a writ of attachment has not yet been enforced, the party whose property is sought to be attached may prevent the attachment either (a)by depositing with the court from which the writ was issue; or (b)by giving a counterbond executed to attaching party, equal to the bond fixed by the court in the order of attachment or to the value of the property attached exclusive of cost. No notice and hearing is required. Thus the writ of attachment may by discharge ex parte Second, of the attachment has already been enforced, the party whose property has been attached, or the person appearing on his behalf may discharge the attachment by: a. b.

c. d.

4. & 7. It depends, There are three modes of appealing a judgement or final order of the RTC.

TO

Filing a motion to discharge the attachment. By Cash deposit with the court from which the attachment is issued or executing a counter bond in favour of the attaching part equal to the amount fixed by the court in the order of attachment, exclusive of the cost. A notice of the depot shall forthwith be served on the attaching party The court shall, after due notice and hearing order the discharge of the attachment.

Thus, in this procedure the mere posting of the counterbond does not automatically discharge the writ of attachment. It is only after due NOTICE and HEARING, and after the judge has ordered the discharge of attachment that the same is properly discharge. Attachment may likewise be discharge without the need for filing a counter-bond. 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 the motion, he proves that: 1.

The same was improperly or irregularly issued or enforced (sec. 13) as where there is no ground for attachment, or the affidavit and/or

2. 3. 4. 5.

the bond filed therefore are defective or insufficient (sec.3); That the bond is insufficient If the attachment is excessive, the discharge shall be limited to the excess. (sec. 13) Debtor has posted a Counter-bond or has made the requisite cash deposit. Property attached is Exempt from execution.

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3. 4.

8. No, the case will not prosper. Under the rules, certiorari under Rule 65 is the appropriate remedy for the parties adversely affected of any (TBO) tribunal, board, or officer exercising judicial or quasi-judicial functions when such TBO has acted S/E of its jurisdiction or with GAD amounting to L/E of jurisdiction, there being no appeal or any other plain, speedy and adequate remedy in ordinary course of law. As a General Rule, a Motion for Reconsideration/New trial is an essential precondition for the filing of a petition for CPM. In the instant case, there was no showing that the defendant has resorted to application of Motion for Reconsideration before going to the SC. Therefore, the case will not prosper. However, this rule is not absolute, jurisprudence has recognized several exceptions, in which certiorari may lie even if the Motion for Reconsideration/New trial has not pre-conditionally filed such as follows, to wit: (LPPeRUM-DICE) 1.

Where the proceedings in the Lower court are a nullity for lack of due process. 2. Where the order is a Patent nullity, as where the court a qou has no jurisdiction. 3. Where the subject matter of the action is Perishable. 4. Where the question Raised in the certiorari proceeding have been duly raised and passed upon by the lower court or are the same as those raised and passed upon in the lower court. 5. Where there is an Urgent necessity for the resolution of the question. 6. When a Motion for reconsideration would be useless 7. Where petitioner is Deprived of due process 8. Where the Issue raised is one purely of law or where public interest is involved. 9. Where, in Criminal case, relief form an order of arrest is urgent and the granting of such relief by the trial court is improbable. 10. Where the proceeding was Ex parte or in which the petitioner has no opportunity to object. Certiorari is a prerogative writ, it is never demandable as a matter of right and never issued except in the exercise of judicial discretion. He who seeks a writ of certiorari must apply for it only in manner and strictly in accordance with the provision of the law and the Rules. Requisites of certiorari 1.

Respondent tribunal, board or officer is exercising judicial and quasi-judicial function

Respondent acted without or excess of jurisdiction, or with GAD amounting to lack/excess of jurisdiction There must be no appeal or other plain, speedy and adequate remedy. Accompanied by a certified true copy of the judgement or order subject of the petition, copies of all pleadings and documents relevant and pertinent thereto, and sworn certificate of non-forum shopping under rule 46.

As a general rule, an order denying a motion of dismiss being merely interlocutory, cannot be the basis of a petition for certiorari. The remedy of aggrieved party is to file and answer and to interpose as defences the objections raised in his motion to dismiss, proceed to trail and in case of an adverse decision, to elevate the entire case by appeal in due course. However, as exception to the rule, since the issue is jurisdiction, and orifical action for certiorari may be directed against an interlocutory order of the lower court prior to an appeal from the judgement. Thus, a petition for certiorari may be filed to assail an interlocutory order, if it issued without or excess of jurisdiction, or in GAD amounting to lack/excess of jurisdiction.

9. The denial is not correct, In Expropriation proceedings, the private owner is deprived of property against his will. Upon filing of the complaint, and after due notice to the defendant, the implementing agency/plaintiff shall have the right to take or enter upon the possession of the real property involved upon as follows, to wit: 1.

2.

If the expropriator is a National Government, with a scheme of immediate payment should be 100% of the value of the property based on the current relevant zonal valuation of the BIR and the value of the improvements and/or structures as determine under sec. 7 of RA. 8974 If the expropriator is a LGU, the payment should be only 15% of the fair market value based on the tax declaration required to be deposited with the authorized government depositary.

Once, the preliminary deposit has been made, the expropriator is entitled to a writ of possession as a matter of right, and the issuance of such writ becomes ministerial on the part of the trial court. In the case at bar, since the NGCP has paid 100% or the total value of the property, it is now entitled to a writ of possession as a matter of right. Hence, the court cannot refuse the issuance of writ as now it is ministerial duty to issue the writ. In expropriation proceedings due process must be strictly followed. In expropriation, the private owner is deprived of property against his will. Withal, the mandatory requirement of due process ought to be strictly followed, such that the State must show, at the

minimum, a genuine need, an exacting public purpose to take private property, the purpose to be specifically alleged or least reasonably deductible form the complaint. (Vda. De Ouano vs. Republic, GR 168770 Feb. 9 2011, 642 SCRA 384)

10. It depends, whether the ground falls in the special civil action of quo warranto or election protest. If the basis is that the occupant is disqualified from holding the office by reason of ineligibility or disloyalty the proper remedy is the special civil action of quo warranto, such denial of motion to dismiss qou warranto is proper However, if it challenges the right of a person to hold office on the ground of regularities in the conduct of elections for said office then Election protest will lie. Note: where there is usurpation or intrusion into an office, quo warranto is the proper remedy. But where the respondent, without claiming any right to an office, excludes the petitioner therefrom, the remedy Is mandamus, not quo warranto.

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The issuance of writ of PI is addressed to the sound discretion of the trial court, conditioned on the existence of clear and positive right of the applicant which should be protected. Moreover, extreme caution must be observed in the exercise of such discretion. It should be granted only when the court is fully satisfied that the law permits it and the emergency demand it. The very foundation of the jurisdiction to issue a writ of injunction rest in the existence of a cause of action and in the probability of reparable injury, inadequacy of pecuniary compensation and the prevention of multiplicity of suit. Negative answer – where the fact are now show to bring the case within these conditions, the relief of injection should be refuse. Requisites for the ISSUANCE of PI 1.

11. the complaint of unlawful detainer with damages will not prosper.

2.

[ In unlawful detainer, if possession is through tolerance, it should be alleged in the complaint that the tolerance was from the beginning or that defendant was able to hold possession of property because of tolerance by the complainant.} “Where defendant’s entry upon the land was with plaintiff’s tolerance right from the date of fact of entry, unlawful detainer proceedings maybe instituted within one (1) year from the demand on him to vacate as there is an implied promise on his part to vacate upon demand” What could have been the proper remedy in this case in an action for forcible entry. Action for forcible entry is available to a person who was deprived of possession of any land or building by (FISTS) force, intimidation, strategy, threat, and stealth. As a general rule, the oneyear period is counted from the date of the entry or taking of possession by use of force, intimidation, threat, or strategy. However, as to exception, the oneyear period in case entry trough stealth should be counted from the demand to vacate upon learning of such entry. 12. Writ of Preliminary Injunction. The injunctive writ is conditioned on the existence of a clear and positive right of the applicant which should be protected, the writ being strong arm of equity, and extraordinary pre-emptory remedy which can be availed of only upon the existence of well-defined circumstances. The requisites whether mandatory or prohibitory are the following: 1.

The applicant must have CLEAR and UNMISTAKABLE RIGHT, that is right in esse.

There is MATERIAL and SUBSTANTIAL INVASION of such right. There is an URGENT NEED for the writ to prevent irreparable injury to the applicant. NO other SPEEDY AND ADEQUATE REMEDY exist to prevent the infliction of irreparable injury.

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4. 5.

There must be a verified application filed before the court. There must be a ground for issuance of the writ which are the ff: (EnCOD) a. Applicant is ENTITLED to the relief demanded and the whole or part of such relief consist in RESTRAINING the commission or continuance of the act/acts complained of, or in REQUIRING the PERFORMANCE of acts with for limited period or perpetually; or b. COMMISSION, CONTINUANCE, or NONPERFORMANCE of the act complained of would work injustice to the applicant; or c. Party, court or agency or a person (DTAPS) is doing, threatening, attempting to do so, procuring or suffering to be done, some act/acts probably in violation of the rights of the applicant respecting the subject of the action or proceedings. The notice shall be preceded or contemporaneously accompanied by service of summons, together with a copy of the complaint/initiatory pleading and applicant affidavit and bond; except when instances where prior and contemporaneously service of summons is not required. A Bond must be posted, unlss othwerise excepted by the court. The threatened injury must be incapable of pecuniary estimation.

GROUNDS FOR OBJECTION TO, OR FOR THE DISSOLUTION OF INJUNCTION OR RESTRAINING ORDER 1) Upon showing of insufficiency of the application; 2) Other grounds upon affidavit of the party or person enjoined; 3) Appears after hearing that irreparable damage to the party or person enjoined will be caused while the

applicant can be fully compensated for such damages as he may suffer, and the party enjoined files a counterbond; 4) Insufficiency of the bond; 5) Insufficiency of the surety or sureties. 13.ANNULMENT OF JUDGEMENT, AND RESOLUTION The party may move for Annulment of JFR under Rule 47 is only when the petioner failed to move for new tiral, or appeal from, or file petiion for relief against, or take other appropriate remedies assailing the questioned JFR through NO FAULT ATTRIBUTABLE to him 

The GR is that final and executory judgement can no long be disturbed altered or modified in any respect, and nothing further can be done but to execute it. A final and executory decision may, however be invalidated via Petition for relief (Rule 38) or a Petition for ANNULMENT of JFR under Rule 47). Rule 47 of ROC is a remedy granted only under exceptional circumstances where a party, WITHOUT FAULT on his part, has failed to avail of the ordinary remedies of New Trial, Appeal, petition for relief or other appropriate remedies. The same petition is not available as a substitute for a remedy which was lost due to the party’s own neglect in promptly availing the same. There’s here no attempted substitution; annulment of judgement is the only remedy available to the petitioner. Requisite elements for the filing of a Petition for Annulment of JFR are on the ground of 1. Extrinsic Fraud / Collateral Fraud; 2. Lack of Jurisdiction over subject matter and over the person and want of due process must be present.

1) Extrinsic Fraud – exists when there is a fraudulent act committed by the prevailing party OUTSIDE the trial of the case, whereby the defeated party was prevented from presenting fully his side of the case by FRAUD AND DECEPTION practiced on him by the prevailing party. 2) Lack of Jurisdiction – refers to either lack of jurisdiction over the person of the defendant or over the subject matter of the claim. 14. The Court of Appeal is correct in dismissing the petition. It must be noted, that by virtue of A.M 05-11-07-CTA (2005) of R.A 9282 or the Revised Rules of Tax Appeals, as amended, Under Sec. 1, Rule 16 thereof, a party adversely affected by a decision or ruling of the CTA en banc may file with the Supreme Court a verified petition for review on certiorari pursuant to Rule 45 of the 1997 Civil Procedure. But, a party adversely affected by resolution of a Division of CTA on a motion for new trial or reconsideration, may file a petition for review with the CTA en banc. Petition for review under Rule 43 is available only for cases decided by quasi-judicial bodies, the CTA being excluded therefrom by virtue of RA 9282 which elevated the rank of the CTA to the level of collegiate court, making it co-equal body of CA. Simple Answer:

A party adversely affected by resolution of a Division of CTA on a motion for new trial or reconsideration, may file a petition for review with the CTA en banc. However, R.A 9282 Sec. 19, further provides that a party adversely affected by a decision or ruling of the Court of Tax Appeals (CTA) en banc may file with the Supreme Court a verified petition for review on certiorari pursuant to Rule 45 of the 1997 Civil Procedure. Petition for review under Rule 43 is available only for cases decided by quasi-judicial bodies, the CTA being excluded therefrom by virtue of RA 9282 which elevated the rank of the CTA to the level of collegiate court. Supplemental Info: Sec. 9(3) of B.P 129 enumerated the cases for exclusive appellate jurisdiction of CA – waray CTA.

Requirements for the issuance of the order of attachment. No. 9 in the Final Exam of 4th year. It depends, If the affidavit executed by Juan Alleges the following. a. b.

c. d.

e.

That there is sufficient of cause of action. That the case is one of those mentioned in Sectioned 1 of Rule 57 of Revised Rules of Court That there is no other security for the claim sought to be enforced by the plaintiff. That the amount due to 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; and The affidavit, and the bond required by this rule must be duly filed with the court before the order issues.

The affidavit must contain all the allegations required, failure to do so renders the writ totally defective as the judge issuing it acts in excess of jurisdiction (K.O. Glass Construction Co. vs. Valenzuela) Memorize Section 1 of Rule 57 (Grounds of Issuing PA)

Meaning of “Compensable taking” The taking of private property for public use, to be compensable, need not be an actual physical taking or appropriate. Compensable taking includes destruction, restriction, diminution, or interruption of the rights of ownership or of the common and necessary use and enjoyment of the property in a lawful manner, lessening or destroying its value. It is neither necessary that the owner be wholly deprived of the use of his property, nor material whether the property is removed from the possession of the owner, or in any respect changes hands. (National Power Corp. vs. Heirs of Macabangkit Sangkay, GR 165828, Aug. 24, 2011).