Preweek Final Civpro

CIVIL PROCEDURE

REMEDIAL LAW PRE-WEEK

CIVIL PROCEDURE PART 2: ORDINARY CIVIL ACTIONS NOTE:

CAUSE OF ACTION

CNFS = Certificate of non-forum shopping COA = Cause of action COC = Clerk of court COCL = Counterclaim CRCL = Cross-claim FAME = Fraud, accident, mistake or excusable negligence FEUD = Forcible entry or unlawful detainer GAD = Grave abuse of discretion GADALEJ = Grave abuse of discretion amounting to lack/excess of jurisdiction JOP = Judgment on the pleadings LOJ = Lack of jurisdiction MFR = Motion for reconsideration MNT = Motion for new trial MTD = Motion to dismiss QJA = Quasi-judicial agency RFJ = Relief from judgment RJ = Res judicata SJ = Summary judgment SM = Subject matter SOF = Statute of frauds SOL = statute of limitations TRO = Temporary restraining order X = Exception

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PART 1: JURISDICTION =

Court’s power to hear the action/proceedings and render a binding judgment.

PRESCRIBED JURISDICTION = Jurisdiction over a particular SM. o Conferred only by the Constitution/law. o Determined by complaint’s allegations. o LOJ can be raised at any time. o Not waivable. o X: Jurisdiction by estoppel. o Once attached to a court, cannot be ousted by subsequent law. o X: If subsequent law expressly provides for retroactivity. o Conferred upon (filing of initiatory pleading + payment of docket fee). o X: May allow docket fee payment within a reasonable time, but within prescriptive period. SPECIFIC JURISDICTION < See Annex. > KATARUNGANG PAMBARANGAY o Applicability: If parties actually reside in the same city/municipality. o X: 1) Government is a party; 2) A public officer/EE is party + Case relates to official functions; 3) Offenses punishable by (imprisonment > 1 year) or (fine > P5K); 4) No private offended party; 5) Realty located in different cities/municipalities. o X: Parties agree; 6) Parties actually reside in barangays of different cities/municipalities; o X: The barangays adjoin each other + Parties agree. 7) Disputes determined by the President or recommended by DOJ Secretary.

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Act/omission by which a party violates another’s right. Elements: 1) Plaintiff’s legal right; 2) Defendant’s correlative obligation; & 3) Defendant’s act/omission violating plaintiff’s right.

SPLITTING OF COA = Dividing a single/indivisible COA into several claims and bringing several actions thereon. o Not allowed. o Effects: 1) Litis pendentia; 2) RJ; 3) MTD under Rule 16 Sec. 1(e) or (f). JOINDER OF COA = If plaintiff has several COAs against the same defendant, he may join them all in a single complaint. o Not compulsory but purely permissive. o Requisites: 1) Compliance with rules on joinder of parties; 2) Not include special civil actions or actions governed by special rules; & 3) If COAs are between the same parties but pertain to different venues/jurisdictions, joinder allowed in an RTC which covers (in venue and jurisdiction) at least 1 of the COAs. o Totality rule = If all COAs are principally monetary claims, the aggregate amount claimed is the test of jurisdiction. JOINDER OF PARTIES 1) Compulsory joinder of indispensable parties; o Indispensable parties = A final decree would necessarily affect their rights so that the court cannot proceed without their presence. 2) Permissive joinder of necessary parties; o Necessary parties = Their presence is necessary to adjudicate the whole controversy but their interests are separable such that a final decree can be made without affecting them. 3) Permissive joinder of parties simple (on a common question of law/fact); o Permissive joinder = Requisites: a) COA arises out of the same transaction or series of transactions; o Series of transactions = Transactions connected by the same SM. b) Question of law/fact common to all plaintiffs/defendants; & c) Joinder not proscribed by jurisdiction/venue rules. 4) Class suit = Requisites: a) SM is a common/general interest to many persons; b) The persons are so numerous that it is impracticable to bring them all to court; c) Parties suing are sufficiently numerous and representative of the class and can fully protect the interests of all concerned; & d) Parties sue/defend for the benefit of all. 5) Alternative defendants = Plaintiff is uncertain against whom of several persons he is entitled to relief, so he may join any/all of them in the alternative, although a right to relief against one

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may be inconsistent with a right to relief against the other.

DEATH OF PARTY DURING THE PENDENCY OF THE ACTION CLAIM NOT EXTINGUISHED BY DEATH o Counsel’s duty to inform the court within 30 days and to give legal representatives’ names. o Heirs will be substituted. If minor heirs, appoint guardian ad litem. o If no legal representative is named, opposing party to procure the appointment the estate’s executor/administrator. IF PARTY IS A PUBLIC OFFICER o Requisites for substitution: 1) Public officer is a party in his official capacity; 2) Pending the action, he dies/resigns; 3) Within 30 days after the successor takes office, it is shown that there is a substantial need to continue/maintain the action; 4) Successor adopts/continues (or threatens) his predecessor’s action; & 5) Successor was given notice and opportunity to be heard. ACTION ON CONTRACTUAL MONEY CLAIMS o If defendant dies before entry of final judgment in the court in which the action was pending at the time of such death, case not dismissed but shall continue until entry of final judgment. o If judgment favorable to plaintiff, enforced as claim against deceased defendant’s estate.

PLEADINGS CERTIFICATE OF NON-FORUM SHOPPING o Forum shopping = Simultaneous/successive filing of multiple suits in different courts, involving the same parties, on the same/related COAs and/or for the same or substantially the same relief. o Test: WON in the 2 or more cases pending, there is identity of: 1) Parties; 2) Rights/COAs; & 3) Relief sought. o CNFS is to be executed by the petitioner, not by the counsel. o CNFS is required only for initiatory pleadings. o CNFS is not required in a COCL since it is not an initiatory pleading. o Failure to comply: Not curable by mere amendment; cause for the dismissal of the case, without prejudice and upon motion and after hearing. DEFENSES o Kinds: 1) Affirmative defenses = Confession + Avoidance. Assuming arguendo claimant’s allegations, new matters alleged by defendant still bar recovery. 2) Negative defenses = Specific denials of claimant’s material allegations. a) Specific denial = Specifies each material allegation belied + Sets forth the substance of the matters upon which he relies to support his denial. b) Denial with qualification = Specifies allegations admitted + Denies the rest. c) Specific denial for lack of knowledge/information sufficient to form

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as belief as to the truth of the complaint’s allegations. d) Specific denial under oath = Contests the authenticity or due execution of an actionable document and sets forth what are claimed to be the facts. o Actionable document = Contains the COA; not merely evidentiary. o Actionable document’s genuineness and due execution are deemed admitted unless specifically denied. o X: Defendant is not party to the document. e) Negative pregnant = Denial pregnant with an admission. Allegations not specifically denied are deemed admitted. o X: 1) Amount of unliquidated damages; 2) Allegations immaterial to COA; 3) Conclusions of law.

COUNTERCLAIMS =

Defendant’s claim against an opposing party.

COMPULSORY COCL = Requisites: 1) Arises out of, or necessarily connected with, the transaction/occurrence that is the SM of the opposing party's claim; 2) Does not require for its adjudication the presence of 3rd parties of whom the court cannot acquire jurisdiction; & 3) Must be within the court’s jurisdiction. o COCL not set up in the answer is deemed barred. o X: COCL acquired by the party after serving his answer (which may be pleaded by a supplemental pleading before judgment). o Test: Logical relationship test = If trial involves many of the same factual and legal issues. cf: CROSS-CLAIM = Requisites: 1) Claim by one party against a co-party; 2) Arises out of the SM of the complaint/COCL; & 3) Cross-claimant is prejudiced by the claim against him by the opposing party. o CRCL is always compulsory. Barred if not set up. o X: 1) If outside the court’s jurisdiction; 2) Permissive CRCL = 3rd parties are necessary for adjudication + Court cannot acquire jurisdiction over them.

AMENDMENT OF PLEADING o

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Kinds: 1) Formal amendments = Clearly clerical errors may be summarily corrected. o At any stage of the action. o Provided: No prejudice to adverse party. 2) Substantial amendments a) If a matter of right: Any time before a responsive pleading is served. b) If a matter of discretion = Substantial + Responsive pleading already served. o Requires court’s leave. When amendment by leave of court is not allowed: 1) If case’s COA/defense/theory is changed; 2) If for conferring jurisdiction to court; 3) If for curing a premature/non-existing COA; 4) If for delay.

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Effects of amendment: o Amendment supersedes the amended pleading. o Claims and defenses in superseded pleading which are not incorporated in the amended pleading are deemed waived. o Admissions made in the superseded pleading may be received in evidence.

AMENDMENT TO CONFORM TO EVIDENCE o If issues not raised by the pleadings are tried without objection, they shall be treated as if raised in the pleadings. o Pleading may be amended any time to raise these issues and to conform to the evidence. cf: SUPPLEMENTAL PLEADING = Sets forth transactions/events that happened since the original pleading’s date.

FILING AND SERVICE o

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Filing = Presenting the pleading/paper to the COC. manner of filing

when pleading is deemed filed

proof of filing

Personally

Upon receipt of the pleading by the clerk of court

By registered mail

On the date the pleading was deposited with the post office

Written/stamped acknowledgment by the clerk of court Registry receipt, and affidavit of the person who did the mailing with:

xxx

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1) Full statement of the date/place of depositing the mail in the post office in a sealed envelope addressed to the court

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xxx

Xxx

2) Postage fully paid 3) Instructions to the postmaster to return the mail to the sender after 10 days if undelivered

Service = Providing a party/counsel with a pleading/paper’s copy.

mode of service Personal service Xxx

completeness of service Upon actual delivery Xxx

Service by ordinary mail

10 days after mailing, unless otherwise provided by the court

Affidavit of the person mailing, showing facts that comply with Rule 13, Sec. 7

Service by registered mail

Whichever is earlier:

Affidavit of the person mailing, showing facts that comply with Rule 13, Sec. 7

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proof of service Written admission of the party served Official return of the server; or affidavit of the party serving, with a full statement of the date/place/manner of service

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1) Actual receipt by the addressee

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2) 5 days after addressee received 1st postmaster's notice

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Registry receipt issued by the post office Xxx

Personal filing and service preferred. o X: Papers emanating from the court. The other modes must be accompanied by an explanation why the service/filing was not done personally. If no written explanation, the paper considered as not filed.

SUMMONS = Coercive force issued by court to acquire jurisdiction over defendant’s person. o When issued: Upon filing of the complaint + payment of legal fees. MODES OF SERVICE OF SUMMONS 1) By service in person to defendant: a) By handing a copy of summons to him; b) By tendering it to him, if he refuses to receive it. 2) By substituted service = Requisites: a) Impossibility of the personal service of summons within a reasonable time; b) Efforts made to find the defendant personally and the fact that such efforts failed; & c) Service by leaving copy of summons either: (1) With some person of suitable age and discretion then residing in the defendant’s residence; (2) With some competent person in charge of the defendant’s office or regular business place. 3) By publication = Requisites: a) The action is in rem or quasi in rem; b) Defendant's identity/whereabouts are unknown and cannot be known by diligent inquiry; & c) Leave of court. WHEN ALIAS SUMMONS MAY ISSUE 1) If summons is returned without being served on any/all of the defendants; or 2) If summons was lost. WAIVER OF SERVICE OF SUMMONS: o By defendant's voluntary appearance. o X: Special appearance to file MTD. EFFECT OF NON-SERVICE OF SUMMONS o Voids all subsequent proceedings and issuances starting from the order of default. o If defendant was already served summons on the original complaint, no further summons required on the amended complaint if it has no new COAs. o But if defendant defaulted on the original complaint, new summons must be served for the amended complaint.

DISMISSAL OF ACTION MTD BEFORE ANSWER UNDER RULE 16 GROUNDS 1) LOJ over the defendant’s person; 2) LOJ over the claim’s SM; 3) Improper venue; 4) Plaintiff’s lack of legal capacity to sue; 5) Litis pendentia = Requisites:

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a) Identity of parties; b) identity of rights and relief; c) Same factual basis; & d) Judgment on one will be RJ on the other. 6) RJ; 7) Prescription; 8) Failure to state COA; 9) Extinguished claim; 10) Unenforceable claim under the SOF; 11) Non-compliance with a condition precedent for filing claim. MTD UNDER RULE 17 1) Upon plaintiff’s notice; 2) Upon plaintiff’s motion; 3) Due to plaintiff’s fault. DEMURRER TO EVIDENCE = After plaintiff’s presentation of evidence, defendant moves for dismissal because plaintiff showed no right to relief upon the facts and the law. o If denied, defendant may present evidence. o If granted but order of dismissal is reversed on appeal, defendant is deemed to have waived the right to present evidence.

DEFAULT = o

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Defendant’s failure to answer within the proper period. Order of default = Interlocutory order issued on plaintiff’s motion, for defendant’s failure to seasonably file his responsive pleading. Judgment by default = Final judgment rendered after a default order or plaintiff’s ex parte evidence.

ELEMENTS OF A VALID DECLARATION OF DEFAULT 1) Jurisdiction over defendant’s person; 2) Defendant fails to answer within allowed time; 3) Motion to declare the defendant in default; 4) Serving defendant a copy of the motion; & 5) Proof of failure to answer. CASES WHERE NO DEFAULTS ARE ALLOWED 1) Annulment of marriage, declaration of nullity of marriage, and legal separation; 2) Special civil actions of certiorari, prohibition and mandamus. EFFECT OF ORDER OF DEFAULT 1) Party in default loses standing as a party litigant. 2) Party in default entitled to notice of subsequent proceedings, but not to take part in the trial. 3) Court to grant relief as claimant’s pleading warrants. o But court may require claimant to submit evidence. o Award not to exceed the amount or be different in kind from that prayed for. o Cannot award unliquidated damages. RELIEF FROM ORDER OF DEFAULT o Before judgment, party declared in default may move to set aside the order of default. o Must show: 1) That his failure to answer was due to FAME; & 2) That he has a meritorious defense. PARTIAL DEFAULT = If claim states a common COA against several defendants and not all defendants answer, court to try the case against all defendants upon the answers filed and evidence presented.

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X: Personal defenses do not benefit those who did not answer.

MODES OF DISCOVERY 1)

2) 3) 4) 5)

Depositions; a) Before action; b) Pending action; c) Pending appeal; Interrogatories to parties; Request for admission by adverse party; Production/inspection of documents/things; Physical/mental examination of persons.

TRIAL PRE-TRIAL = Mandatory conference of parties and counsels before the judge, called by the court after the joinder of issues or after the last pleading has been filed and before trial. o For settling the litigation expeditiously. o Duty of parties and counsels to appear in pre-trial. o Party’s non-appearance excused only if either: 1) Valid cause is shown for it; 2) A representative appears in his behalf, fully authorized in writing: a) To enter into an amicable settlement; b) To submit to alternative dispute resolution; & c) To enter into stipulations. o Parties shall file and serve their pre-trial briefs. Brief must be received by adverse party at least 3 days before the pre-trial date. o Pre-trial order shall control the subsequent course of the action. o Contents of pre-trial order: 1) Matters taken up in the conference; 2) Action taken thereon; 3) Amendments allowed on the pleadings; 4) Parties’ agreements/admissions; & 5) If action shall proceed to trial, definition and limit of issues to be tried. CONSOLIDATION OF TRIAL = If actions involving common question of law/fact are pending before the court, it may order a joint hearing/trial or consolidation of all actions. SEVERANCE OF TRIAL = Court may issue separate trials for convenience or to avoid prejudice: 1) Of any claim, COCL, CRCL 3rd-party complaint; 2) Of any separate issue; 3) Of any number of claims, COCLs, CRCLs, 3rdparty complaints or issues.

JUDGMENT JUDGMENT ON THE PLEADINGS o Grounds: 1) Answer fails to tender an issue; = Merely general/insufficient denial of complaint’s material allegations. 2) Answer admits the adverse party’s pleading’s material allegations. o Cases where JOP is not allowed and complaint’s allegations of material facts must be proved: 1) Declaration of nullity of marriage; 2) Annulment of marriage; 3) Legal separation. SUMMARY JUDGMENT

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Accelerated judgment. Granted if it is clear that there is no genuine issue/controversy of fact, except as to the amount of damages. Genuine issue = Issue of fact which needs presentation of evidence. Filing of a motion for SJ does not interrupt the running of the period for filing an answer. Movant must also file a Motion for Extension of Time to File Answer. Partial SJ = If there can be no full summary judgment, trial to deal only with the facts not yet established. Not a final judgment, but merely a pre-trial adjudication.

REQUISITES OF A VALID JUDGMENT 1) Court has authority to hear and determine the matter before it; 2) Court has jurisdiction over parties and SM; 3) Parties were given opportunity to present evidence; 4) Court considered such evidence in deciding the case; 5) Judgment is in writing, and personally and directly prepared by the judge; & 6) Judgment clearly states its factual and legal basis, signed by the judge and filed with the COC. PROMULGATION = Decision is published, officially announced, made known to the public or delivered to the COC for filing, coupled with notice to the parties or their counsel. AMENDMENT TO JUDGMENTS o Court cannot amend the judgment once it has become final and executory. o X: 1) To correct clerical errors (not substantial amendments); 2) To clarify an ambiguities borne out by the context of the decision; 3) Judgments for support, which can always be amended from time to time. ENTRY OF JUDGMENTS o If there is no appeal/MNT/MFR timely filed, the COC shall enter the judgment in the book of entries of judgments. o Date of finality of the judgment = Date of its entry in the book. EFFECT OF JUDGMENTS 1)

RJ in judgments in rem:

judgment Against a specific thing Probate of a will or administration of the estate of a deceased person

In respect to the personal, political, or legal condition or status of a particular person or his relationship to another

2)

conclusive as to Title of the thing The will or administration. However, the probate of a will or granting of letters of administration shall only be prima facie evidence of the death of the testator or intestate; The condition, status or relationship of the person,

RJ in judgments in personam: o Conclusive between the parties and their successors in interest by subsequent title.

RES JUDICATA o Requisites: 1) Former judgment is by a jurisdiction over SM and parties; 2) Final judgment;

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3) On the merits; & 4) Identity of parties, SM and COA. Two concepts: 1) Bar by prior judgment = Judgment on 1st case is absolute bar to every matter which was litigated or could have been litigated upon. 2) Conclusiveness of judgment = If 2nd case is upon a different claim, judgment on 1st case is estoppel only to those issues already litigated upon. o Preclusion of issues; auter action pendant.

EFFECT OF FOREIGN JUDGMENTS judgment Upon a specific thing Against a person

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effect Judgment is conclusive on the thing’s title. Judgment is presumptive evidence of a right as between the parties and their successors in interest.

In either case, judgment may be repelled by evidence of: 1) LOJ; 2) Lack of notice to the party; 3) Collusion; 4) Fraud; 5) Clear mistake of law/fact.

EXECUTION OF JUDGMENT EXECUTION AS A MATTER OF RIGHT o When the judgment becomes executory, the court cannot refuse to issue a writ of execution o X: 1) If PFR or action to enjoin judgment is filed + Preliminary injunction is prayed for and granted; 2) Incomplete or conditional judgment; 3) Judgment is novated by the parties; 4) Subsequent facts/circumstances render execution unjust/impossible; 5) Change in parties’ situation makes execution inequitable; 6) Judgment became dormant (5-year period under Rule39.6 expired without revival). o Seasonably perfected appear stays the execution of judgment. o X: 1) Injunction; 2) Receivership; 3) Accounting; 4) Support; 5) Judgments declared to be immediately executor; 6) Discretionary execution granted by the court. o How to execute a final and executory judgment: 1) By motion: Within 5 years from the date of its entry. 2) By action: (After the 5 years + Before it is barred by the SOL). o The revived judgment may be enforced by motion within 5 years from the date of its entry; thereafter by action before it is barred by the SOL. DISCRETIONARY EXECUTION o If the court rendering judgment still has jurisdiction, it may exercise discretion and order execution pending appeal. o X: Inapplicable to CA. Rule on discretionary Execution contemplates a situation where a

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judgment rendered in the exercise of its original jurisdiction and the prevailing party in said decision seeks immediate execution during the pendency of an appeal. CA has no authority to issue immediate execution pending appeal of its own decisions therein. Filing of a supersedeas bond is sufficient to stay the enforcement of a discretionary execution. o X: Since the suspension of execution is not a matter of right, if the needs of the prevailing party are urgent, the court can order immediate execution despite the bond.

EXECUTION OF MONETARY JUDGMENTS 1) Immediate payment upon demand. 2) Levy = Officer appropriates the whole/part of judgment debtor’s property for a prospective execution sale. 3) Garnishment of debts and credits = Levying an incorporeal property in the hands of 3rd persons.

When available

Before judgment becomes final and executory

After judgment becomes final and executory

Period to file petition

Within the time to appeal

Scope of application

Applies to judgments and final orders only

Within 60 days from knowledge of judgment AND within 6 months from entry of judgment Judgments, final orders, and other proceedings: - Land Registration; - Special Proceedings; - Order of Execution.

Grounds

1) FAME; 2) Newly discovered evidence Legal remedy

FAME

Motion need not be verified

Petition must be verified

Nature

POST-JUDGMENT REMEDIES

Verification Remedies against a judgment A. Before a judgment becomes final and executory: 1) MFR; 2) MNT; 3) Appeal. B. After the judgment becomes final and executory: 1) Petition for relief from judgment; 2) Action to annul a judgment; 3) Certiorari; 4) Collateral attack of a judgment that is void on its face.

MOTION FOR NEW TRIAL / RECONSIDERATION o Must be filed within the period for appeal. o Period for appeal: Within 15 days after notice of the judgment. o No motion for extension of time for filing MNT/MFR is allowed. o Filing of a timely MNT/MFR interrupts the period to appeal. o No appeal from an order denying a MNT/MFR. o Remedies if MNT/MFR is denied: 1) Appeal from the judgment itself; 2) Order denying the MNT/MFR may be assailed by a petition for certiorari under Rule 65. o MNT/MFR is not a prerequisite to an appeal, PFR or a petition for review on certiorari. grant of MFR

grant of MNT

The court may amend the judgment or final order accordingly. The amended judgment is in the nature of a new judgment, which supersedes the original judgment

The original judgment shall be vacated, and the action shall stand for trial de novo. The recorded evidence upon the former trial shall be used at the new trial without retaking them (if they are material and competent).X

RELIEF FROM JUDGMENT = Seeks to set aside a judgment because petitioner was: 1) Unjustly deprived of a hearing; 2) Prevented from taking an appeal because of FAME. o Party who timely filed a MNT/MFR can no longer file a petition for RFJ after the MNT/MFR was denied. These remedies are mutually exclusive. MNT/MFR (Rule 37)

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Equitable remedy

ANNULMENT OF JUDGMENT o Applicability: o For annulment by CA of RTC judgments in civil actions, if MNT/appeal/PFR or other appropriate remedies are no longer available without petitioner’s fault. o If annulment of MTC judgment, filed in RTC and treated as ordinary civil action. o Grounds: 1) Extrinsic fraud – File within 4 years from discovery. o X: If ground was availed or could have been availed of in MNT/PFR. 2) LOJ – File before barred by laches/estoppels. o Effect of judgment of annulment: o Sets aside the questioned judgment as null and void, without prejudice to the original action being refiled in the proper court. o But if ground is extrinsic fraud, court may order trial in TC as if a timely MNT was granted. o If questioned judgment was already executed, order of restitution or other just and equitable relief. o Prescriptive period for the refiling of the original action is suspended from the filing of the original action until the finality of the judgment of annulment. But period not suspended if the extrinsic fraud is attributable to the plaintiff in the original action.

APPEAL mode of appeal Ordinary appeal

Rule 40 Rule 41

Petition for review

Rule 42

Applicability Appeal to RTC of MTC judgment/final order Appeal to CA of RTC judgment/final order rendered in exercise of RTC's original jurisdiction Appeal to CA of RTC judgment/final order rendered in exercise of RTC's appellate jurisdiction

RFJ (Rule 38)

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CIVIL PROCEDURE Rule 43

Appeal by certiorari (petition for review on certiorari)

Rule 45

REMEDIAL LAW PRE-WEEK Appeal to CA of QJA judgments/final orders/awards/ resolutions rendered in exercise of quasijudicial functions Appeal to SC where only questions of law are raised/involved

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ORDINARY APPEAL o Fresh period rule = Period for appeal is interrupted by a timely MNT/MFR. o Motion for extension of time to file MNT/MFR not allowed. o Applicability: 1) Rule 40 on appeals from MTC to RTC. 2) Rule 42 on petitions for review from RTC to CA. 3) Rule 43 on appeals from QJA to CA. 4) Rule 45 on appeals by certiorari to SC. O Applicability of ordinary appeal: To judgments or final orders that completely dispose of either: 1) The case; 2) A particular matter in the case, when declared by ROC to be appealable. o Interlocutory order = Does not dispose of the case but leaves something else to be done on the merits of the case. For purposes of appeal, an order is final if it disposes of the entire case.

PRELIMINARY ATTACHMENT O

PART 3: PROVISIONAL REMEDIES

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Purposes: 1) To seize the debtor’s property in advance and hold it as security for satisfying the judgment. 2) To acquire jurisdiction over the action when personal service of summons cannot be made.

PRELIMINARY INJUNCTION o

o APPEAL BY CERTIORARI TO SC o Review is not a matter of right, but of sound judicial discretion. o Reasons considered in exercising review power: a) Case of first impression; b) Power of supervision over lower courts. o Question of law = When controversy is as to what the law is on a certain state of facts; o Question of fact = When controversy is as to the truth of the facts alleged. o CA’s findings of fact are final and conclusive and cannot be reviewed on appeal to the SC, provided: there is substantial evidence. o X: CA’s findings of fact may be reviewed by the SC on appeal by certiorari when: 1) Conclusion is a finding grounded entirely on speculations/surmises/ conjectures; 2) Inference made is manifestly mistaken/absurd/impossible; 3) There is GAD in the appreciation of facts; 4) Judgment is based on a misapprehension of facts; 5) CA’s findings of fact are conflicting; 6) CA, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both parties; 7) CA manifestly overlooked certain relevant facts not disputed by the parties and which, if properly considered, would justify a different conclusion; 8) CA’s findings of fact are contrary to those of the TC, or are mere conclusions without citation of specific evidence, or where the facts set forth by the petitioner are not disputed by the respondent, or where the findings of fact of the CA are premised on absence of evidence but are contradicted by the evidence of record. o Rule 65 cannot cure the failure to appeal thru Rule 45.

Writs and processes available during the pendency of the action which may be resorted to preserve/protect parties’ rights/interest. Ancillary or auxiliary remedies. To secure the judgment or preserve the status quo. All inferior courts can grant provisional remedies, provided: the main action is within their jurisdiction. Orders granting/denying provisional remedies are merely interlocutory.

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Preliminary preventive injunction = Order granted by the court where the action/proceeding is pending at any stage of an action/proceeding prior to the judgment requiring a party or a court, agency or a person to refrain from a particular act/s. Preliminary mandatory injunction = Requires the performance of a particular act/s. Purpose: To prevent future injury and maintain the status quo. Requisites: 1) Applicant is entitled to the relief demanded; 2) Relief consists in restraining or requiring the commission/continuance of the act/s; 3) Commission/continuance/non-performance of the act/s during the litigation would probably work injustice to the applicant; & 4) The act/s are probably violative of the applicant’s rights and tend to render the judgment ineffectual. Hearing and prior notice to the party/person sought to be enjoined is required. o X: 1) Great/irreparable injury to the applicant before it can be heard on notice. o May issue a TRO effective for 20 days from service on the party sought to be enjoined. o Irreparable injury = Of such constant and frequent recurrence that no fair/reasonable redress in court or there is no standard by which their amount can be measured with reasonable accuracy. 2) Matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury o May issue ex parte a TRO effective for 72 hours from issuance. o Within 72 hours, judge shall conduct a summary hearing to determine WON the TRO shall be extended until the application for preliminary injunction can be heard. o Maximum period of TRO’s effectivity: 20 days. o If issued by CA: 60 days. o If by SC: Until further orders. o If the application for preliminary injunction is denied or not resolved within the 20 days, the TRO is deemed automatically vacated. o TRO’s effectivity of a TRO is not extendible. Court cannot extend/renew it on the same ground for which it was issued.

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TRO VS. INJUNCTION o TRO is intended as a restraint upon the defendant until the propriety of granting an injunction pendente lite can be determined. TRO goes no further than to preserve the status quo until such determination. o Same requirements for application as preliminary injunction.

CERTIORARI, PROHIBITION AND MANDAMUS Certiorari grounds Tribunal, board or officer exercising judicial or quasi-judicial functions acted with LOJ or GADALEJ

RECEIVERSHIP o

Person whose rights are affected by the statute/regulation/ordinance.

Receiver = Person appointed by the court in behalf of all the parties to the action, to preserve and conserve the property in litigation and prevent its possible destruction/dissipation, if it were left in the possession of any of the parties.

REPLEVIN =

Principal action is to recover possession of personal property from defendant. o Extends only to personal property capable of manual delivery.

purpose To correct an act performed by the respondent

SUPPORT PENDENTE LITE o

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Cases where granted: 1) Civil action for support; 2) Criminal action where civil liability includes support for the offspring as a consequence of the crime. If the right to support is put in issue, court cannot grant support pendente lite. If the person ordered to give support pendente lite refuses/fails, any 3rd person who furnished that support to the applicant may enforce his right of reimbursement.

PART 4: SPECIAL CIVIL ACTIONS o

Rules on ordinary civil actions apply to special civil actions insofar as not inconsistent or suppletorily.

INTERPLEADER o

Requisites: 1) Person has property in his possession or has an obligation to render; & 2) Does not claiming any right in it; & 3) Asks that defendants who have conflicting claims upon the property/obligation be required to litigate among themselves to determine who is entitled to the property/obligation.

DECLARATORY RELIEF o

o

Requisites: 1) SM is either a written instrument or a statute/regulation/ordinance; 2) Its terms and validity are doubtful and require judicial construction; 3) No breach of it yet; 4) Actual justiciable controversy; 5) Issue ripe for judicial determination; & 6) Adequate relief not available through other means. Who may file: 1) Person interested in the instrument;

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Prohibition

Mandamus

Proceedings of tribunal, corporation, board, officer or person, exercising judicial, quasijudicial or ministerial functions, are with LOJ or GADALEJ

Tribunal, corporation, board, officer or person: a. unlawfully neglects performance of a specifically enjoined duty; or b. unlawfully excludes another from the use and enjoyment of a right/ office

To prevent the commission or carrying out of an act

To compel the performance of the act desired

Common requirement for Rule 65 writs: There is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law.

PROHIBITION o A preventive remedy. But to prevent the act during the pendency of the proceedings for the prohibition writ, must obtain a TRO and/or writ of preliminary injunction. MANDAMUS o In the performance of an official duty/act, the official can only be directed to act, but not to act in one way or the other. o X: GAD, manifest injustice, palpable excess of authority. CERTIORARI A petition for review on certiorari as a mode of appeal (Rule 45) may be distinguished from a special civil action for certiorari (Rule 65) in that: o Petition for certiorari as a mode of appeal is governed by Rule 45 and is filed from a judgment or final order of the RTC, Sandiganbayan or CA, within 15 days from notice of the judgment appealed from or of the denial of the duly filed MNT/MFR on questions of law only. o Special civil action for certiorari is governed by Rule 65 and is filed to annul/modify judgments, orders or resolutions rendered/issued without or in excess of jurisdiction or GADALEJ, when there is no appeal nor plain, speedy and adequate remedy in the ordinary course of law, to be filed within 60 days from notice of the judgment, order or resolution subject of the petition. o In appeal by certiorari under Rule 45, the petitioner and respondent are the original parties to the action and the lower court is not impleaded. In certiorari under Rule 65, the lower court is impleaded. o In appeal by certiorari, the filing of a MFR is not required; while in the special civil action of certiorari, MFR is generally required.

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CIVIL PROCEDURE

REMEDIAL LAW PRE-WEEK

= Remedy to try disputes with respect to the title to a public office. O Filed by whom, against whom: 1) By the Government, in the name of the Republic, against: a) Person who unlawfully holds/exercises a public office/position; b) Public officer who does an act which is legally a ground for forfeiture of his office; c) Association which acts as a corporation in the Philippines, without being legally incorporated. 2) By a person claiming to be entitled to a public office, in his own name, against another who unlawfully held/exercised such public office.

1) 2) 3)

Complaints; COCL and CRCL pleaded in the answer; Answers thereto.

FORCIBLE ENTRY AND UNLAWFUL DETAINER O

o

o

Actions for recovery of possession of real property: 1) Accion Interdictal = Summary action for FEUD. o Must be brought within 1 year from the date of (actual entry to the land or last demand) in the proper MTC/METC. 2) Accion Publiciana = Plenary action for recovery of the right to possess. o Brought in the proper RTC when dispossession has lasted for > 1 year. 3) Accion Reivindicatoria = Plaintiff alleges ownership and seeks recovery of its full possession. o Must be brought in the proper RTC. Forcible entry = Defendant’s possession of land/building is illegal ab initio (by force, intimidation, strategy, threat or stealth). Unlawful detainer = Defendant’s possession of land/building was originally lawful but ceased to be so by the expiration of his right to possess. o Commenced by lessor only after either: 1) Demanding lessee to pay or comply with the conditions of the lease and to vacate; 2) Serving written notice of such demand upon the person found on the premises; 3) Posting such notice on the premises if no person be found thereon, and the lessee fails to comply within (15 days for land or 5 days for buildings). o X: Prior demand not required: 1) If action’s purpose is to terminate the lease due to term’s expiration (not for failure to pay rentals or comply with the terms of the lease contract). 2) If action’s purpose is enforcement of the K’s terms (not for ejectment). 3) When the defendant is not a tenant but a mere intruder.

SUMMARY PROCEDURE IN METC/MTC/MCTC o

o

Applicability of the 1991 Revised Rules on Summary Proceedings: 1) FEUD; o Irrespective of the amount of damages or unpaid rentals sought. o If attorney's fees are awarded, not > P20K. 2) Other civil cases where the total amount of the plaintiff's claim is not > P10K (exclusive of interest and costs). o X: Probate proceedings. The only pleadings allowed:

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