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 appealed

o 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 party

o 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 Form

o 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)

Contentso 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 65

o 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 merit

o 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

Replevino 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

Stageso 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 bond

o 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 acts

o 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 Requirements

o 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 controversyo 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

Remedieso 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 conveyance

o 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) Bond

o 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 instrument

o Action to quiet the title of the real property or remove the clouds therefrom

o Action to consolidate ownership under Art. 1607 of the Civil Code Subject matter

o 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

Partieso 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 appended

o 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 MR

o 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 parties

o 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 judgment

o 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/WPI

o Administrative remedies must be exhausted in order to be availed against officers in the executive department

o 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 Mandamus

o Commanding a tribunal, corporation, board, officer to perform an act which it unlawfully neglect

o 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 partyo CA – quasi-judicial agencies

Must have proof of serviceo SC – novel issues

Must have proof of service Parties

o 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 property

o 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 Objections

o No Objection Entitled to all notices

o 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 Expropriation

o 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 first

o 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 oatho Formula

Fair Market Value + Consequential Damages = JC Consequential Benefits > Consequential Damages = Fair

Market Value is JCo 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

Noteso 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 Judgment

o 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 partition

o 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 judgmento 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 lease

o Issue: who between the contending parties has better possession of the contested property

o 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 Publicianao 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 Reinvidicatoria

o 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 possessiono 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 detainer

o 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 reinvidicatoria

o No allegation on how they were able to enter the lando 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 complainto 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 damages

o 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)

Executiono 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 ino Refusal to answer as a witnesso Refusal to subscribe to an affidavit or deposition when lawfully

required to do so Penalty for direct contempt

o 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