Remedial Law} Civil Procedure} Past Exams of Prof Bautista} Made 2001} by Ateneo} 46 Pages

8/13/2019 Remedial Law} Civil Procedure} Past Exams of Prof Bautista} Made 2001} by Ateneo} 46 Pages

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Past exams Civil Procedure Prof. Antonio R. Bautista

II. JURISDICTION

Introductory/general concepts

Q. Up to what stage of a c!l acton "ay the ssue of #ursdcton $e rased% &'() *+,,-

dter"s IIIa

A. In case of jurisdiction over the subject matter, the question may be invoked at any stage of theproceedings (even on appeal), but the issue of jurisdiction over the person of the defendant mustbe raised either in the motion to dismiss or by way of an affirmative defense in the answer.(Amigo v A, !"# $%A #&!).

Q0 1 sues D n RTC2anla to reco!er 1+334333.33 and a parcel of land located n anla. 1s a anla resdent whle D s a resdent of Que5on Cty. D "o!es to ds"ss on theground of lac6 of #ursdcton. 7hat rulng% &'()

A' otion denied. he claim for *+,. may be properly joined with the claim for recovery

of real property, and % has jurisdiction over such money claim since it has jurisdiction over theclaim for recovery of real property. (%ule !, $ec. "-c)

Q0 Suppose you are the counsel for D who s sued n the TC for unlawful detaner and ona 1'34333.33 pro"ssory note &not related to the lease su$#ect of the acton)4 what would$e your proper and effect!e procedural recourse% &'()

A' I will move for severance of one cause of action because of misjoinder of the two causes ofaction, one / to wit, the unlawful detainer action / being a special civil action. (%ule !, $ecs. " -band 0)

Q0 8ast 9e$ruary +,,34 T ded n Que5on Cty4 hs place of resdence4 lea!ng a wll. aythe RTC of :ulacan ta6e cogn5ance of the petton for the pro$ate of hs wll e!en f he left

no property n :ulacan% &'()

A' 1es, deceased2s residence or location of his estate is not an element of jurisdiction of theprobate court but is merely one of venue. $o, %/3ulacan may take cogni4ance of the petitionfor probate if there is no objection to the venue.

Jursdcton &su$#ect "atter) of the dfferent le!els of courts n c!l cases

Q. 14 a anla resdent4 fled a collecton acton aganst C and D n RTC anla4 allegng atotal cla" of 1;


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Q. 4 a anla resdent4 $ought a color TB set at the prce of 1+'4333.33 on ; "onthlynstall"ents fro" : Co.4 a anla2$ased applance co"pany. The transacton was co!ered$y a condtonal sale contract. defaulted n hs "onthly nstall"ent pay"ents afterha!ng pad ' such nstall"ents. In what court "ay : Co. $rng the acton to reco!er theTB set% &+,,< dter" @Aa" BI$)

A. ?o answer

Q. 1 corporaton fled an acton aganst D n the RTC to collect certan a"ounts of "oneya"ountng to 1 ; "llon on ts cla" that D4 whle presdent of 1 corporaton and $y usnghs poston as such presdent and through fraud and "srepresentaton4 "sappropratedand d!erted to hs personal use these corporate funds. D "o!ed to ds"ss the co"planton the ground that t falls wthn the #ursdcton of the Securtes and @AchangeCo""sson &S@C). Rule on the "oton to ds"ss. &'() *+,,' 9nals BIIIa

A. otion to dismiss granted. he complaint alleges acts committed by a corporate officeragainst the corporation, which amounts to fraud and misrepresentation and thus detrimental tothe interest of the public. herefore, what was otherwise an ordinary action for a sum of moneyhas been converted to an inter/corporate controversy which calls for the adjudicative powers ofthe $@ under $ec " (a) of *7 ;!/A. (Alleje v A, !9 $%A 9;").

*** note amendment to PD 902-A in the Securities Regulation Code of 2000 transferringadjudicative poers of the S!C over certain cases to the regular courts"

Q. 14 a senor Bce21resdent of a corporaton4 was ds"ssed for lac6 of confdence.ggre!ed4 1 sued the co"pany for llegal ds"ssal wth prayer for $ac6 wages4renstate"ent4 da"ages and other $enefts $efore the 8a$or r$ter. The co"pany "o!edto ds"ss on the ground that the 8a$or r$ter has no #ursdcton on the o!er the acton.Rule on the "oton. &'() *+,,- dter"s BIa

A. otion granted. 5urisdiction properly pertains to the $ecurities and @6change ommissionbecause the dismissal of a corporate officer is a corporate act andor an intra/corporate

controversy. (@strada v ?B%, C% ?o. +0:!!, 9 Dctober +;;0)

*** note amendment to PD 902-A in the Securities Regulation Code of 2000 transferringadjudicative poers of the S!C over certain cases to the regular courts"

Q. 7hat s the legal effect of the non2pay"ent of the doc6et fees n full% &'()

A. he court does not acquire jurisdiction over the subject matter in the case. herefore, theentire proceeding undertaken in the case are null and void. -Eodges v. A+&" $%A !&+ (+;;)

Q0 1 sues D n RTC2anla to reco!er 1+334333.33 and a parcel of land located n anla. 1

s a anla resdent whle D s a resdent of Que5on Cty. D "o!es to ds"ss on theground of lac6 of #ursdcton. 7hat rulng% &'()

A' otion denied. he claim for *+,. may be properly joined with the claim for recoveryof real property, and % has jurisdiction over such money claim since it has jurisdiction over theclaim for recovery of real property. (%ule !, $ec. "-c)

Q. cton $y 1 aganst D n the RTC for a su" of "oney was sought to $e ds"ssed$y D on the ground of prescrpton. The "oton to ds"ss was dened and D $rought a

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specal c!l acton for certorar n the C aganst the order of denal of hs "oton tods"ss. The C ds"ssed the petton. Then4 D fled hs answer4 after whch tral washeld and #udg"ent rendered aganst D. On appeal fro" ths #udg"ent to the C4 D fled a"oton to ds"ss the co"plant on the ground of lac6 of #ursdcton4 allegng htat 1 hadnot pad the approprate doc6etng fees n the tral court. Rule on the "oton to ds"ss.

A. otion to dismiss denied. Although the payment of the proper docket fees is ajurisdictional requirement, the may allow the plaintiff in an action to pay these fees within areasonable time before the e6piry of the applicable prescriptive or reglementary period. 3ut if theplaintiff fails to comply with this requirement, defendant should timely rise the issue of jurisdictionor else he would be considered in estoppel. Eere, 7 filed an answer and participated in theproceedings before the . It was only after judgment was rendered against him that he raisedthe issue of jurisdiction. Fhile the lack of jurisdiction ... may be raised at any stage of an action,the party raising such question may be estopped if he has actively taken part in the veryproceedings which he questions and he only objects to the court2s jurisdiction because the

judgment or decision subsequently rendered is adverse to him. (?ational $teel orp. v A)

III. B@NU@Q0 8ast 9e$ruary +,,34 T ded n Que5on Cty4 hs place of resdence4 lea!ng a wll. aythe RTC of :ulacan ta6e cogn5ance of the petton for the pro$ate of hs wll e!en f he leftno property n :ulacan% &'()

A' 1es, deceased2s residence or location of his estate is not an element of jurisdiction of theprobate court but is merely one of venue. $o, %/3ulacan may take cogni4ance of the petitionfor probate if there is no objection to the venue.

IB. 1RTI@S

*arty in Interest

Q. 4 owner of an "pro!ed cty lot4 leased the sa"e to :. 7hle : s n possesson4he was dspossessed $y C. :4 therefore4 fled an acton aganst C to reco!er possesson.C contested upon the ground that :4 not $eng the owner of the land4 s not the real partyn nterest. Is C>s contenton correct% &'()

A. If the action filed is for forcible entry wherein the issue is only possession de facto, 3, asthe lessee, has a right of action against to recover the same. 3 is a party in interest in thesense that he has a present substantial interest in the land, the possession of which he had beendeprived.

apacity to sue and be sued

Q. E Co"pany4 a corporaton ncorporated under the laws of chgan4 US4 entered nto aFrepresentat!e agree"entF wth G Co"pany4 a do"estc corporaton4 for the sale n the1hlppnes of E Co"pany>s electroncs products n consderaton for a stpulatedco""sson. fter the agree"ent was n force for a year4 E Co"pany ter"nated t andthen $rought an acton n the RTC2a6at to en#on G Co"pany fro" dealng n s"larproducts as those of E>s. G Co"pany "o!ed to ds"ss the acton on the ground that ECo"pany4 $eng a foregn corporaton not lcensed to do $usness n the 1hlppnes4 hasno capacty to sue. Rule on the "oton to ds"ss. &+3() *+,,- dter"s I

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A. G ompany may well be said to be doing business in the *hilippines because of thee6tensiveness and regularity of the sales of its products in this country whereby it made 1ompany its mere agent in pursuit of its business. Eowever, 1 ompany is estopped tochallenge the personality of G after it has acknowledged the same by entering into a contract with

it. his result is dictated by fair play. A person contracting with a foreign corporation cannot takeadvantage of the latter2s non/compliance with the licensing requirement where such person hasreceived the benefits of the contract. (ommunication aterials and 7esign Inc v A, C%+!!!#, !! August +;;0)

5oinder of parties

Q. D purchased a car fro" 14 a car dealer4 on nstall"ents and secured the purchase prce$alance &co!ered $y a pro"ssory note) wth a chattel "ortgage on the car. 7hle thepurchase prce was not yet fully pad and the "ortgage on the car stll eAstng4 D sold thecar to @. 7th D ha!ng defaulted on the pay"ents4 14 see6ng to foreclose the chattel"ortgage4 sued out a wrt of reple!n aganst D and @4 $ut snce D could no longer $eser!ed wth su""ons4 1 "o!ed to drop D as defendant. Rule on 1>s "oton to drop D.&+3() *+,,? dter"s III

A. he motion to drop 7 as defendant cannot be granted without dismissing the complaintbecause 7 is an indispensable party. he replevin suit is anchored on *2s alleged right topossess the car and which right in turn is founded on the alleged default of 7. If the case against7 is dismissed, there would be no remaining cause of action against @. *2s right to possess thecar is conditioned on 72s actual default and this default cannot be established in 72s absence.($ervicewide $pecialists Inc. v A, C% ?o. +##+, & 7ecember +;;".)

$ubstitution of parties

Q. 1lantff fled a petton for "anda"us to co"pel the then "uncpal "ayor to ssue toh" the "uncpal lcense and per"t to resu"e operatons of hs coc6pt. 1endng the

acton4 the "ayor was ds"ssed fro" offce. fter tral4 the court ssued the wrt of"anda"us and ad#udged defendant "ayor la$le for da"ages. In due course4 the sherffle!ed eAecuton of the #udg"ent for da"ages on defendant "ayor>s propertes. Is thele!y !ald% &+3() *+,,- dter"s IB

A. he levy is void because the judgment is void and without any legal effect. he judgment isvoid because there was no substitution, pursuant to %ule +&, $ection #, of defendant mayor andthe filing of a supplemental pleading showing that defendant mayor2s successor had adopted orcontinued the defendant mayor2s policy to deny the cockpit license. (Calve4 v A, C% ++;+;#,!; arch +;;0.)

?ewadditional parties' impleader

Q. 7hat s the effect!e recourse of the defendant where the plantff dd not "plead anndspensa$le party% &+,,< dter" @Aa" II$)

A. 7efendant should move for an order directing the plaintiff to amend its complaint by impleadingthe indispensable party. Hpon plaintiff2s failure or refusal to obey this order, the action should bedismissed. (%ule +:, $ec. # ?ational 7evelopment o. v. ourt of Appeals, !++ $%A 9!!-+;;!).

Q. cton $y 1 aganst D n the RTC for a su" of "oney wheren D "pleaded E as a thrd2party defendant on the cla" that E s la$le to plantff $y way of su$rogaton to D>s

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Q0 cton n RTC2 anla aganst d to collect a su" of "oney. D s a 9lpno nowper"anently resdng n the Unted States $ut co"es to the 1hlppnes durng theChrst"as holdays. ow "ay the su""ons n ths acton $e ser!ed on h"% &'()

A' Dnly personally, when he is in the *hilippines even temporarily only. @6traterritorial service is

not permissible since the action is inpersonam (%ule +9, +") and 7 is not a *hilippine %esident(Id. $ec. +0)

Q0 cton n RTC2 anla aganst d to collect a su" of "oney. D s a 9lpno nowper"anently resdng n the Unted States $ut co"es to the 1hlppnes durng theChrst"as holdays. ow "ay the su""ons n ths acton $e ser!ed on h"% &'()

A' Dnly personally, when he is in the *hilippines even temporarily only. @6traterritorial service isnot permissible since the action is inpersonam (%ule +9, +") and 7 is not a *hilippine %esident(Id. $ec. +0)

$ervice of summons

Q. D $orrowed US +34333 fro" the Kua" :ranch of a 1hlppne $an6 and eAecutedtherefore n gana4 Kua" a pro"ssory note. Upon D>s default on the note4 "ay the1hlppne $an6 sue h" n then 1hlppnes to collect on ths note% &+,,? dter" @Aa"IB$)

A. 1es. 72s suability before our courts depends on the latter2s ability to acquire jurisdiction overhis person or his property. In this case, the bank may file a simple collection case before a*hilippine court and have the summons served on 7 should he be found in the *hilippines buthere the filing of the suit should be timed to coincide with the time that 7 is e6pected in thiscountry, also the complaint may be dismissed for non/prosecutions if the summons is not servedseasonably enough. 3ut the better alternative would be to have the plaintiff file an application forpreliminary attachment on the real property of 7 in the *hilippines, because in such case, 72s

non/residence will be a sufficient and independent ground for the issuance of an attachment(%ule ":, $ec. +-f) and the court may then acquire jurisdiction over his person by service ofsummons by publication (%ule +9, $ec. +:).

BI. 18@DINKS

A?$F@%

Q. n acton on a pro"ssory note $y 1 aganst D Co"pany4 copy of the note $engattached to the co"plant as an anneA. D Co"pany answered $y denyng la$lty andallegng that the person who sgned the note had no authorty to do so4 $ut ths answer

was not !erfed. ay D Co"pany pro!e ts defense% &'()

A. ?o. 3y failing to make a verified denial of the genuineness and due e6ecution of thenote, 7 ompany had admitted that the party whose signature appears thereon had indeedsigned the note and that he had authority to sign it. -Imperial e6tile ills Inc. v. A + $%A"&9 (+;;)

Q. ay the tral court eAtend the perod for flng an answer after ths perod had alreadyeApred% &'()

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Q. ay lac6 of #ursdcton o!er the person $e pleaded as an affr"at!e defense and aprel"nary hearng had thereon% &+3() *+,,? dter"s BIII

A. 1es. Any ground for dismissal under %ule +0, e6cept improper venue, may be pleaded as anaffirmative defense and a preliminary hearing had thereon. A defendant is allowed to put up his

own defenses alternatively or even hypothetically. 7efenses and objections not pleaded either ina motion to dismiss or an answer, e6cept for the failure to state a cause of action, are deemedwaived. herefore, the defendant is enjoined to set up, along with his objections to the court2s

jurisdiction over his person, all other possible defenses. (Ba ?aval 7rug orp. v A, !#0 $%A:&).

ounterclaim and cross/claim

Q. 8 sued C to annul a deed of sale of a lot and for 8 to $e declared the owner thereof.Judg"ent went to C4 and ths #udg"ent $eca"e fnal. Thereafter4 C fled an acton aganst84 and : for da"ages for the use and occupancy of the sa"e lot4 and : $eng 8>stransferees of the house $ult on the lot4 ths house ha!ng $een transferred $y 8 to and: e!en $efore the flng of the annul"ent acton. 84 and : "o!ed to ds"ss C>sco"plant on the ground that t s $arred $y the #udg"ent n the frst acton. Resol!e the"oton to ds"ss. &+,, dter" @Aa" IE)

A. otion to dismiss granted. he scone motion is barred by the Kcompulsory counterclaim ruleK(%ule (, $ection 9) because the complaint for damages is necessarily connected with thetransaction subject matter of the first action. Ead the same been annulled in the first action then would have no right to collect rents from the occupants of the lot and house, while if the courtsustained the validity of the same (as it did) then would have had such right. he addition of Aand 3 as additional defendants does not detract form the res judicata effect of the judgment in thefirst case because these parties should have been impleaded by on his compulsorycounterclaim in the first auction. $ee arpena v. analo, + $A% +0 (+;&+) and myannotation in # *EIBA5H% "&& at 0+/0! (+;:&).

Q. In an acton n the RTC $y the lessee aganst the lessor to fA a perod for hs lease4 "aythe RTC entertan the defendant lessor>s countercla" for the e#ect"ent of plantff lesseeon the ground of the eApry of the stpulated ter" n the lease contract% &'() *+,,,dter" EI

A. ?o, this is not a compulsory counterclaim because it is not within the jurisdiction of the % asto its nature. (%ule 0, $ec. :)

Q. cton on a fre polcy aganst an nsurance co"pany whch ssued t. The defendantnsurer fled a thrd2party co"plant aganst a re2nsurer whch set up n hs answer thedefense alleged $y the defendant nsurer that the loss was caused $y the wllful act ofconn!ance of the plantff nsured. ay the thrd2party defendant re2nsurer countercla"

aganst the plantff% *+,,, U1 :arops III

A. 1es, provided that the counterclaim be in respect to the plaintiff2s claim against the third/partyplaintiff. (%ule 0, sec. +#)

Q. The TC ds"ssed4 on defendant>s "oton4 a co"plant for unlawful detaner groundedon ter"naton of a "onth2to2"onth lease4 for lac6 of #ursdcton o!er the su$#ect "atterdue to lac6 of pror de"and to !acate4 and awarded n fa!or of the defendant the a"ount

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of 1 '4333.33 as attorney>s fees. Is ths TC decson !ulnera$le to attac6 on certorar%&+3() *+,,? dter"s BII

A. 1es. $ince the had no jurisdiction over the principal action for unlawful detainer, then ithad no jurisdiction over the compulsory counterclaim for attorney2s fees either. 7efendant2s claim

for attorney2s fees is in the nature of a compulsory counterclaim, and a compulsory counterclaimcannot remain pending for independent adjudication by the court. A compulsory counterclaim ismerely au6iliary to the proceeding in the original suit and derives its jurisdictional support fromthis original suit. 3esides, it was defendant himself who caused the dismissal of his counterclaimby moving for the dismissal of the complaint. (7alisay v arasigan, C% ?o. ++"&&, ! 5une+;;0.

Amended and supplemental pleadings

Q. sued : n RTC2anla for $reach of contract. : fled a "oton to ds"ss on theground that the co"plant fals to state a cause of acton. :efore the "oton to ds"sswas resol!ed4 fled an a"ended co"plant. The RTC dd not ad"t a"ended co"plant4rulng that faled to o$tan lea!e of court. >s "oton for reconsderaton was denedL so4he fled a petton for certorar n the Court of ppeals. : "o!es to ds"ss the pettoncontendng that the C has no #ursdcton to ssue certorar4 snce only a Hueston of laws n!ol!ed. Is the RTC #udge correct% Does the C ha!e #ursdcton to ssue certorar%Decde. &+,,< dter" @Aa" B)

A. ?o answer

Q. us$and fled a co"plant n the RTC aganst hs wfe prayng for custody of therchldren and that ther support $e deter"ned4 the co"plant allegng that defendant2wfeatte"pted to 6ll plantff2hus$and $y 6c6ng h" twce on hs gental. fter answer4plantff was allowed $y the tral court to a"end hs co"plant $y allegng that defendantatte"pted to 6ll h" $y placng poson on hs food and prayng for legal separaton. 7asthe a"end"ent properly allowed% &+3() *+,,? dter"s IB

A. here was no evidence that the amendment was made with intent to delay the action or thatthe cause of action was substantially altered. Fhile the reliefs sought are different, as the originalcomplaint prays for custody and support while the amended complaint prays for legal separation,what determines the nature and character of an action is not the prayer but the essential basicallegations of fact as set forth in the complaint. here is no substantial alteration of the cause ofaction because defendant is not required to answer for a liability or legal obligation whollydifferent from that which was stated in the original complaint. @ven granting that the causes ofaction under the original and amended complains are different, still the amended complaintshould be admitted because such causes of action, as legal separation, custody and supportarose from the marital relationship between the parties, and a party is allowed to state in onepleading as many causes of action as may arise out of the same relation between the parties.(Anastacio v Anastacio, ;! DC !:90.)

8ormal requirement of pleadings

Q. ay a co"plant whch had $een ds"ssed for falure to attach a certfcaton aganstforu" shoppng $e re2fled% &'() *;333 9nals III

A. 1es, unless the dismissal order states that it is with prejudice. (%ule :, $ec ", !nd par)

7etail in pleading

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Q. 1 co"pany4 a foregn nsurance co"pany4 sued n the RTC2anla and alleged that t sduly author5ed to do $usness n the 1hlppnes4 $ut defendant n hs answer dened thsallegaton as to 1>s capacty to sue for lac6 of 6nowledge or nfor"aton. 7hat s the effectof defendant>s denal% *+,,, U1 :arops E

A. ?one. he denial is ineffective for being a general denial and therefore is inadequate to attackp2s capacity to sue. (%ule &, $ec. 9, !nd sent.)

8iling and service of pleadings J other papers

Q. In an acton $y 1 aganst D n the RTC for reco!ery of possesson and da"ages4 D fledan answer wth countercla"s $ut furnshed counsel for 1 a copy of ths answer $yregstered "al and hs answer dd not contan any wrtten eAplanaton as to why ser!cewas not "ade personally upon 1. So4 1 fled a "oton to eApunge the answer and todeclare D n default on the ground that D dd not o$ser!e the "andate reHurng personalser!ce or an eAplanaton of ts a$sence. Rule on D>s "oton. *+,,, U1 :arops BI

A. otion granted. Hnder $ec. ++, %ule +# of the +;;: %ules of ivil *rocedure, personalservice and filing is the general rule, and resort to other modes of service and filing, thee6ception. herefore, whenever personal service or filing is practicable, in light of thecircumstances of time, place and person, personal service or filing is mandatory. Dnly whenpersonal service or filing is not practicable may resort to other modes be had, which must then beaccompanied by a written e6planation as to why personal service was not practicable. heabsence of such e6planation is a violation of the rule and may be cause to consider the paper asnot filed. ($olar eam @ntertainment, Inc. vs. %icafort, C.%. ?o. +#!:, August ", +;;& -+st7iv)

Q. In an unlawful detaner sut $y 1 aganst D4 the TC alolos rendered #udg"entorderng D to !acate the pre"ses and to surrender ther possesson to 1. Thereafter4 awrt of eAecuton of the #udg"ent and a wrt of de"olton4 were ssued. Durng the graceperod allowed D under the wrt of de"olton4 D fled a separate acton n RTC2:ulacanaganst 1 and the pro!ncal sherff for specfc perfor"ance on the ground that D s

enttled to rece!e the !alue of the "pro!e"ents on the lot su$#ect of the e#ect"ent case$ecause he was a $ulder n good fath. The RTC :ulacan ssued a TRO and then later aprel"nary n#uncton4 en#onng the enforce"ent of TC alolos> wrt of eAecuton andorder of de"olton. Dd the RTC alolos act correctly% &+3()

A. ?o. his claim for compensation for improvements is a compulsory counterclaim under %;$9and therefore, 7 should have raised it in the ejectment case even only alternatively because it isinconsistent with his claim of ownership. -ojuanco v. Lillegas +&9 $%A #:9 (+;;)

Q. ay a court grant relef greater than that as6ed for n the prayer of the ltgant>spleadngs% &'()

A. $ee %;$#.

Q In an acton n the RTC $y the lessee aganst the lessor to fA a perod for hs lease4 "aythe RTC entertan the defendant lessor>s countercla" for the e#ect"ent of plantff lesseeon the ground of the eApry of the stpulated ter" n the lease contract.

A. ?o, this is not a compulsory counterclaim because it is not within the jurisdiction of the % asto its nature. (rule 0, sec :)

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Q. ay 1 properly and correctly fle a co"plant n the RTC aganst D to reco!er 1+ "llon$ased on a pro"ssory note and another 1+ "llon $ased on tortous nterference wthcontract4 and for foreclosure of a real estate "ortgage to secure a loan of 1' "llon%

A. Fhile causes of action may be joined against a common opposing party whether of the same

nature or character or whether they arise out of the same contact or relation or whether they arefor sums of money, yet none of the causes of action must be a special civil action or actiongoverned by speciai rules otherwise, there would be a misjoinder of causes of action. Eere, thecause of action for mortgage foreclosure is misjoined because it is a special civil action. (%ule !,sec ").

BII. OTIONS

BIII. O:J@CTIONS TO 18@DINKS

M. * sued 7 and @ for reconveyance, with damages, of a parcel of land. After filing his answer, @served on * written interrogatories. 7espite the lapse of +! years, the written interrogatoriesremained unanswered. $o on @Ns 7, the court issued an order directing * to answer thewritten interrogatories within + days from receipt of the order. his order having gone unheeded,the court issued another order dismissing the complaint against @. After the order of dismissalhad become final, * filed a motion for admission of amended complaint in which @ is againimpleaded as a defendant on the same cause of action alleged in the original complain, plus andadditional cause of action impugning the order of dismissal as being null and void for allegedlyhaving been obtained through fraud. @ moves to dismiss amended complaint on the ground ofres judicata. %ule on @Ns 7. (+O)

A. 7 granted. 7ismissal was in effect for failure to prosecute and therefore has the effectof an adjudication on the merits under %+:$#. Also, it is arguable that the dismissal is under

%!;$" and therefore an adjudication on the merits. he added cause of action in the amendedcomplaint is improper because such an alleged cause of action can be raised only in a motion fornew trial or in a %#& petition for relief. -$ee Arellano v. 8I of $orsogon 0" $%A 90 (+;:")

otion to dismiss' want of jurisdiction

Q. 1 sued D n the RTC to reco!er the su" of 1;34333.33 plus nterest. D answered allegngpay"ent $y set2off. fter pre2tral $ut $efore the case could actually $e tred4 D fled a"oton to ds"ss on the ground that the RTC has no #ursdcton o!er the case. Instead offlng an opposton to D>s "oton to ds"ss4 1 fled a "oton for lea!e to a"end hsco"plant $y ncludng an allegaton of a cause of acton for 1'4333.33 attorney>s fees. Ifyou were the #udge4 how would you resol!e D>s "oton to ds"ss and 1>s "oton forad"sson of hs a"ended co"plant% &+,,< dter" @Aa" I)

A. I would grant 72s motion to dismiss and deny *2s motion to admit amended complaint. (a) Amotion to dismiss on the ground of lack of jurisdiction over the subject matter may be filed at anystage of the action. ($ee %ule ;, $ec. !) (b) 7 already having answered, * must have to ask forleave of court to amend his complaint (%ule +, $ecs. ! and #). Fhile *2s proposed amendmentmay not alter his cause of action, still the amendment is not allowable because it would have theeffect of conferring jurisdiction upon the court. $ince the amount alleged in the original complaintdoes not e6ceed *!,. e6cluding interest, the % did not acquire jurisdiction over thecase, and so the % has neither the power nor the jurisdiction to act on the motion for theadmission of the amended complaint, much less to allow such amendment, since the court must

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first acquire jurisdiction over the case in order to act thereon. (see %osario v. arangdang, ;0*hil. &9" -+;"").

*** ta#e note of the change in jurisdictional amounts

Q0 cton $y 1 aganst D n the RTC for da"ages allegedly suffered $y 1 whle a payngpassenger n a !ehcle owned and dr!en $y D. Durng the pre2tral4 the partes enterednto such a co"prehens!e stpulaton of facts that the #udge was "o!ed to decde thecase on su""ary #udg"ent. 1roper% &'()

A' ?o. A hearing, on motion duly noticed, is required by %ule #9. (3ased on Codala v. ru4, &&D.C. :&;; -A +;&;).

otion to dismiss' litis pendentia

Q. 1 fled a co"plant n the housng and 8and Use Regulatory :oard &8UR:) to co"pelD to release and del!er a condo"nu" certfcate of ttle and to desst fro" collectngfees for co""unty $eneft and to release all such fees collected and for da"ages. Durngthe pendency of the 8UR: case4 D fled a co"plant aganst 1 n the RTC for thecollecton of fees for ad"nstrat!e and "antenance eApenses4 co""on co"fort4securty and santaton. 1 then fled a "oton to ds"ss the RTC case on the ground ofpendency of a s"lar case $efore the 8UR:. Resol!e the "oton to ds"ss. &+,,s attac6 at the foreclosure sale tanta"ounts to anattac6 at a fnal order of the RTC and therefore s wthn the eAclus!e #ursdcton of theC. Se!eral "onths later4 1 fled another co"plant aganst Dscreet :an6 for theannul"ent of the foreclosure sale and recon!eyance of the "ortgaged property. s$efore4 Dscreet :an6 "o!ed to ds"ss on the ground of res #udcata4 argung that thessues rased n ths new case had $een resol!ed n the wrt2of2possesson case and n thesecond case foe the annul"ent of the foreclosure sale4 $ut ths "oton was opposed $y 1on the ground that the ds"ssal of the second case was not an ad#udcaton on the "erts4

the ds"ssal $eng for lac6 of #ursdcton and therefore cannot consttute res #udcata.

&a) 7as the rulng on the frst "oton to ds"ss correct% &+,,< dter" @Aa" IIIa)

A. Fhile the hearing in the writ/of/possession case was supposed to be summary , a full/dresshearing was actually conducted and * submitted himself to it. * cannot now therefore be heardto challenge the jurisdiction of the court and to escape or repudiate the effects of its judgment.$o, the order in the writ/of/possession case bars the second case on res judicata grounds.

&$) Rule on the "oton to ds"ss the thrd case. &+,,< dter" @Aa" III$)

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A. In dismissing the second case for lack of jurisdiction, the court recogni4ed the order ofdismissal in the writ/of/possession case as a final one which it could not annul, since the authorityto annul such orders pertains to the A only. his was, by itself, an adjudication on the merits of*2s claim because it declared him no longer entitled to the right upon which his claim is based. A

judgment is deemed to be rendered upon the merits when it amounts to a declaration of the lawas to the respective rights and duties of the parties, based upon the ultimate facts or state of factsdisclosed by the pleadings and evidence, and upon which the right of recovery depends,irrespective of formal, technical or dilatory objections or contentions. (7e %amos v. A, !+#$%A !: -+;;!)

Q. 8e!y of eAecuton of "oney #udg"ent n C!l Case No. +;s rentals4and upon D>s falure to pay the ncreased rentals4 1 pro"ptly fled a co"plant aganst D nthe RTC prayng for hs e!cton and for da"agesL the RTC ds"ssed ths co"plant forlac6 of #ursdcton. 7th the RTC ds"ssal4 1 fled an acton for unlawful detaner aganstD n the TGC $ased on the sa"e allegatons as hs co"plant n the RTC. D now "o!es to

ds"ss ths second unlawful detaner co"plant on the ground that t s $arred $y pror#udg"ent. Rule on the "oton to ds"ss. &+,, dter" @Aa" BIII$)

A. otion to dismiss denied. he second ejectment action is not barred by the decision in thefirst ejectment case no identity of causes of action because the ground for ejectment in thesecond action is for non/payment of different rentals. ?or is the % judgment a bar because itis not on the merits. Liray v. arinas, 9; $%A 99 (+;:#).

Q. 4 hus$and4 fled an acton aganst hs wfe4 74 to ha!e ther "arrage declared !od dueto the latter>s alleged psychologcal ncapacty to contract "arrage. fter tral4 the actonwas ds"ssed. Then4 fled another acton aganst 7 to ha!e the sa"e "arragedeclared !od for alleged a$sence of a "arrage lcense. Can the second acton prospero!er t"ely opposton% &'() *;333 9nals IB

A. 7epends on whether the ground urged by E in the second action was already known to andcould have been raised by E in the first action. ($ee %ule #;, $ec. 9: -b)' Kor as to any matterthat could have been raised in relation thereto.K)

Q. E :us Co"pany purchased +3 $uses fro" G otor Co. co!ered wth pro"ssory notesand deeds of chattel "ortgage. Then4 G assgned these notes and deeds of chattel"ortgage to :an6 and then su$seHuently assgned the sa"e notes and chattel"ortgages to : 9nance Co. Then4 when E defaulted on the notes4 G4 and : de"andedpay"ent. In !ew of ther conflctng cla"s aganst t4 E fled n the RTC an nterpleader

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acton aganst G4 and : prayng that the court deter"ne whch a"ong the" s enttled topay"ent on the notes. Three days later4 : fled an acton for reple!n wth da"agesaganst E and G prayng that G $e declared la$le to pay :>s cla" aganst E n the e!entthat : s not a$le to reco!er thereon aganst E. Defendants "o!ed to ds"ss the reple!nco"plant on the ground of the pendency of the nterpleader acton. Rule on the "oton to

ds"ss. &'() *+,,, dter" IE

A. otion to dismiss granted. here is identity of parties between the interpleader case andreplevin case. In the interpleader case, the plaintiff is G and the defendants are 1, A and 3,whereas in the replevin case, the plaintiff is 3 and the defendants are G and 1. In both casestherefore, 3, G and 1 are parties with the addition of A, but this addition does not retract from therequisite identity. In both cases, the rights spring from the deeds of assignment e6ecuted by 1 infavor of A and 3, covering the same debts of G owing to 1. he identity in both cases is such thatany judgment that may be rendered in the interpleader case would amount to res judicata in thereplevin case if judgment in the interpleader case is that the assignment to A would prevail overthe assignment to 3, such judgment would be binding on the replevin case and undercut 32scause of action in the replevin case. ($anpiro 8inance orp. vs. IA, !! $%ARRR -#rd 7iv.,+;;#)

Q. In the $elef that the decedent ded ntestate4 E4 G and M4 hs nephews4 ntated n theRTC an ntestate proceedng wheren they o$taned an order appro!ng ther eAtra#udcalpartton of the estate. :ut later4 E fled a "oton to annul the order of appro!al on theground that a wll of the decedent had $een dsco!ered and theren sought ts pro$ate.The pro$ate court dened E>s "oton on ts fndng that the alleged wll had $een destroyedand re!o6ed $y the decedent. Two "onths later4 E fled a petton n another RTC forpro$ate of the alleged wll4 $ut G and M "o!ed to ds"ss the petton on the ground that ts $arred $y the #udg"ent of the ntestate court fndng the alleged wll to ha!e $eendestroyed and re!o6ed. Rule on the "oton to ds"ss. &+3() *+,,' 9nals I

A. otion to dismiss denied. he intestate court had no jurisdiction to entertain the probate of thealleged will in the intestate proceeding and therefore it could not have made a finding that thealleged will had been destroyed and revoked (asiano v aloto, :; $%A). $o, the intestate

court not having jurisdiction to make this finding, the petition for probate of the alleged will cannotpossibly be barred by res judicata.

Q. @nu"erate all the ways $y whch a c!l case n our courts "ay $e ter"nated4 wth$ndng and res #udcata effect4 wthout a full2dress e!dentary tral where the partes areena$led to present ther respect!e test"onal and other e!dence. &+3() *+,,- dter"sE

A.+. judgment on the pleadings!. summary judgment#. dismissal on motion of the defendant

9. voluntary dismissal by the plaintiff". dismissal for plaintiff2s failure to prosecute0. judgment by default:. judgment on confession or on compromise&. judgment on a complete stipulation of facts.

Q. 1 sued and : to reco!er a parcel of land. Judg"ent went for and :. Then4 sued: to reco!er the sa"e parcel. Is ths second acton $arred $y res #udcata% &'() *+,,-dter"s BIIIa

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A. It depends. If A2s claim against 3 was already e6isting at the time of the first action and was acompulsory counterclaim in that case, then the second action is barred under %ule ;, $ec. 9.Dtherwise, there is no estoppel because A and 3 were no adverse parties in the first case andtheir relative rights and liabilities as co/defendants inter/se were not brought in issue. (Lalde4 vendo4a, &; *hil. )

otion to dismiss' improper venue

Q. 14 a resdent of anla4 sued D4 also a resdent of anla4 n the RTC2QC to collect1'334333 $ased on a pro"ssory note. The RTC2QC ds"ssed the acton "otu propro onthe ground that the partes4 $eng $oth resdents of anla4 t has no #ursdcton o!er thecase. Is the ds"ssal correct% &'() *+,,, dter" EB

A. ?o, the matter of residence is one of venue only and not of jurisdiction. he court cannot motupropriodismiss an action for improper venue, a motion being required for that purpose. Lenuetouches more upon the convenience of the parties rather than upon the substance or merits ofthe case it involves no more and no less than a personal privilege which may be lost by failure toassert it seasonably. ($ee Cu4man vs. 3atario, ;" D.C. pp. #9:: -A +;;9)

Q. ay a court grant relef greater than that as6 for n the prayer of the ltgantspleadng%

A. $ee %;$#.

In an action in the % by the lessee against the lessor to fi6 a period for his lease, may the %entlthough action is for annulment of the contract, the prime objective is to recover the land.Lenue should be 3ulacan. (Caviero4 v. $anche4, ;9 *hil ;:0) %9.+

otion to dismiss' want of jurisdiction

Q. cton $y 1 aganst D n the RTC for a su" of "oney was sought to $e ds"ssed $y D

on the ground of prescrpton. The "oton to ds"ss was dened and D $rought a specalc!l acton for certorar n the C aganst the order of denal of hs "oton to ds"ss.The C ds"ssed the petton. Then4 D fled hs answer4 after whch tral was held and

#udg"ent rendered aganst D. On appeal fro" ths #udg"ent to the C4 D fled a oton toDs"ss the co"plant on the ground of lac6 of #ursdcton4 allegng that 1 had not padthe approprate doc6et fees n the tral court. Rule on the "oton to ds"ss. &'() *+,,,dter" B

A. otion to dismiss denied. Although the payment of the proper docket fees is a jurisdictionalrequirement, the may allow the plaintiff in an action to pay these fees within a reasonable timebefore the e6piry of the applicable prescriptive or reglementary period. 3ut if the plaintiff fails tocomply with this requirement, defendant should timely raise the issue of jurisdiction or else hewould be considered in estoppel. Eere, 7 filed an answer and participated in the proceedings

before the . It was only after judgment was rendered against him that he raised the issue onjurisdiction. Fhile the lack of jurisdiction RRRRRRRRRRRRRRRRRRRmay be raised at any stage ofan action, the party raising such question may be estopped if he has actively taken part in thevery proceedings which he questions and he only objects to the court2s jurisdiction because the

judgment or decision consequently rendered is adverse to him. (?ational $teel orp.vs. A, C.%.?o. +!#!+", 8eb. !, +;;; -!nd 7iv.)

otion to dismiss' insufficient allegations

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Q. The co"plant s"ply alleges that D s legally la$le to 1 for da"ages n a na"eda"ount. D "o!es to ds"ss ths co"plant for falure to state a cause of acton. Resol!ethe "oton to ds"ss. *+,,, U1 :arops BIII

A. Cranted. he operative or constitutive facts making up the pleaded cause of action are not

stated. he only matters pleaded are conclusions of law.

otion to dismiss' non/compliance with a condition precedent for f iling

Q. 7 sued her hus$and &) and E Co"pany to annul a transfer of her paraphernal lot $y to E Co"pany on the cla" that the transfer was ultra !res a power of attorney g!en $y 7to . "o!ed to ds"ss on the ground that her co"plant dd not allege pror effortstowards a co"pro"se. Resol!e the "oton to ds"ss. *+,,? 9nals I

A. otion to dismiss denied. he requirement of prior efforts to a compromise does not applywhere there is a stranger to the action. (agbaleta vs. Conong, :0 $%A "++ -+;::).

otion for judgment on the pleadingsotion for summary judgment

Q. 7here n an acton $y 1 aganst D to reco!er 1< llon da"ages for physcal n#uresallegedly suffered n a !ehcular collson4 D fles an answer whch contans nothng $utgeneral denals4 can 1 ha!e #udg"ent on the pleadngs or su""ary #udg"ent% &'()*+,,, dter" EBIII

A. ?o judgment on the pleadings because of failure to make a specific denial does not amount toan admission of the averments as to the amount of unliquidated damages (%ule &, $ec. ++) andtherefore there is a triable issue of fact (%ule #9, $ec. +). 3ut summary judgment may be grantedif, after notice and hearing, the court should find, on the basis of the pleadings, supportingaffidavits, depositions and admissions on file that, e6cept as to the amount of damages, there is

no genuine issue as to any material fact and that the moving party is entitled to a judgment as amatter of law. (%ule #", $ec. #)

Q. 7hat s plantff>s $est procedural recourse aganst an answer whch pleads no "orethan negat!e pregnants% &'() *+,,- dter"s IEa

A. ove for judgment on the pleadings.

Q. 1 sued D to Huet ttle to a parcel of land cla"ng to $e the owner of the land and toha!e nherted t fro" hs father. On the other hand4 D answered $y assertng ownershpo!er the sa"e land n h"self $y cla"ng to ha!e nherted t fro" hs own father4 thealleged owner. 1 fled a reply to whch was attached a docu"ent enttledFc6nowledg"ent of OwnershpF duly sgned $y D>s father and concedng ownershp of

the land to 1>s father. fter pre2tral4 the court rendered su""ary #udg"ent n 1>s fa!or onthe ground that the genuneness and due eAecuton of the docu"ent anneAed to 1>s replywas not dened $y D under oath. Is the su""ary #udg"ent correct% &+,,? dter" @Aa"BIII)

A. ?o. In the first place, there was no motion for summary judgment. In the second place, theissue of ownership is a genuine factual issue which has to be resolved by a trial on the merits.here is no admission of the genuineness and due e6ecution of the Acknowledgement ofDwnership because this document was signed by 72s father and not by 7 himself and so there

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acton aganst G4 and : prayng that the court deter"ne whch a"ong the" s enttled topay"ent on the notes. Three days later4 : fled an acton for reple!n wth da"agesaganst E and G prayng that G $e declared la$le to pay :>s cla" aganst E n the e!entthat : s not a$le to reco!er thereon aganst E. Defendants "o!ed to ds"ss the reple!nco"plant on the ground of the pendency of the nterpleader acton. Rule on the "oton to

ds"ss.

A. otion to dismiss granted. here is identity of parties between the interpleader case anthe replevin case. In the interpleader case, the plaintiff is G and the defendants are 1, A and 3.In the replevin case, the plaintiff is 3 and the defendants are G and 1. In both cases, therefore,3, G and 1 are parties with the addition of A, but this addition dos not detract from the requisiteidentity. In both cases, the rights spring from the deeds of assignment e6ecuted by 1 in favor of

A and 3, covering the very same debts of G owing to 1. he identity in both cases is such thatany judgment that may be rendered in the interpleader case would amount to res judicata in thereplevin case if judgment in the interpleader case is that the assignment to A would prevail overthe assignment to 3, such judgment would be binding on the replevin case and undercut 32scause of action in the replevin case. ($anpiro 8inance orp. v IA, !! $%A ... -#rd 7iv.,+;;#)

Q. 14 a resdent of anla4 sued D4 also a resdent of anla4 n the RTC2QC to collect1'334333.33 $ased on a pro"ssory note. The RTC2QC ds"ssed the acton "otu proproon the ground that the partes4 $eng $oth resdents of anla4 t has no #ursdcton o!erthe case. Is the ds"ssal correct%

A. ?o, the matter of residence is one of venue only and not of jurisdiction. he court cannotmotu proprio dismiss an action for improper venue, a motion being required for that purpose.Lenue touches more upon the convenience of the parties rather than upon the substance ormerits of the case. It involves no more and no less than a personal privilege which may be lostby failure to assert it seasonably. ($ee Cu4man v 3atario, ;" D.C. pp #9:: -A +;;9)

Q. 7here n an acton $y 1 aganst D to reco!er 1< llon da"ages for physcaln#ures allegedly suffered n a !ehcular collson4 D fles an answer whch contansnothng $ut general denals4 can 1 ha!e #udg"ent on the pleadngs or su""ary

#udg"ent%

A. ?o judgment on the pleadings because the failure to make a specific denial does notamount to an admission of the averments as to the amount of unliquidated damges (%ule &, $ec++) and therefore, there is a triable issue of fact (%ule #9, $ec +). 3ut summary judgment may begranted if, after notice and hearing, the court should find, on the basis of the pleadings supportingaffidavits, depositions, and admissions on file that, e6cept as to the amount of damages, there isno genuine issue as to any material fact and that the moving party is entitled to a judgment as amatter of law. (%ule #", $ec #)

Q. 7here there s an ssue as to defendant>s la$lty for eAe"plary da"ages4 "ay thecourt render su""ary #udg"ent n the case%

A. ?o. $ummary judgment is proper only when there is no triable issue of material facte6cept as to the amount of damages, not as to the liability for damages. (%ule #", sec #)

Q. ow does the defendant rase the ssue as to hs legal capacty to $e sued%

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A. 3y moving to dismiss on the ground that the court has no jurisdiction over his person.(%ule +0, sec +-a)

Q. 1 sued D to reco!er possesson and ownershp of a parcel of land4 $ut ths actonwas ds"ssed &after the case was scheduled se!eral t"es for tral) for 1>s falure to

prosecute. fter the ds"ssal order had $eco"e fnal4 1 $rought another acton aganst Dfor Huetng of ttle o!er the sa"e parcel of land. D "o!ed to ds"ss ths ;nd acton onthe ground of res #udcata. Rule on the "oton.

otion to dismiss granted. he dismissal had the effect of an adjudication on the merits, thecourt not indicating otherwise. (%ule +:, sec #) he judgment in the first case having becomefinal and there being the requisite identity of parties, subject matter and causes of action, res

judicata bars second action. (*anado v orte4, ;9 DC 9 -A+;;#)

Q........$ass of the decree4 n the nterpleader sut4 won the e#ect"ent acton. : dd notappeal ths #udg"ent4 $ut pre!aled on hs earler appeal fro" the nterpleader decree anwas awarded the rents whch has $een collected. 7hen : sought to $rng an e#ect"entacton aganst 4 the latter pleaded res #udcata4 $ased on hs pre!ous successfule#ect"ent acton. Rule on >s n!ocaton of res #udcata.

A. %es judicata properly applies. he judgment in the ejectment action is final and not opento attack collaterally, but subject to impeachment only through some form of direct attack. heappellate court was limited to a review of the interpleader decree. (%eed v Allen, !0 H.$. +;+, "!$. t. "#!, :0 B. @d., +"9 -+;#!)

Q. Dstngush Flaw of the caseF fro" res #udcata

Q. Defendant "o!ed to ds"ss the co"plant on the ground that ts allegatons areFnot suffcent to warrant the relef prayed for.F Rule on the "oton to ds"ss.

A. +otion to dismiss denied. his is not a ground for a motion to dismiss, and the prayer ispart of the complaint and, save in case of default, is of no importance. (amponanes v

3artolomen, #& *hil 0&).

Q. 14 a resdent of anla4 fled a co"plant aganst D4 a resdent of Ilolo4 n the RTC2anla. Ths co"plant contans ; causes of acton4 one for "oney4 and the other for ttleto real property n :aguo4 $oth causes of acton arsng out of the sa"e transacton$etween the partes. Is there anythng procedurally wrong wth the co"plant%

A. here is misjoinder of causes of action, and therefore the court should order theirseparation so that each cause of action may proceed independently of the other. Fhile joinder ofcauses of action is allowed, the cause of action for title to property in 3aguio...mislaid. (%ule !,secs " -c and 0)

IE. DISISS8S ND D@9U8TS

Q0 In hs effort to unclog hs doc6et and co"ng across the record of Specal 1roceedngsNo. =3+4 a guardanshp case n!ol!ng a "nor wth propertes worth "ore than a "llonpesos4 and fndng the sad case to ha!e $een pendng snce way $ac6 n +,=


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REMEDIAL LAW REVIEW


A' 3ased on +;&" 3ar @6am. ?o. A guardianship case involving a minor continues until theminor has reached the age of majority. It cannot therefore be dismissed for failure to prosecute.

Q0 Does ds"ssal of a co"plant on plantff>s "oton carry wth t the ds"ssal of

defendant>s co"pulsory countercla"% &'()

A' ?o, the dismissal Kshall be limited to the complaint.K (%ule +:, $ec. !)

Q0 1 sued D to co"pel the latter to eAecute a deed of sale to h" o!er a parcel of land thepurchase prce of whch had allegedly already $een fully pad $y 1. fter hs "oton tods"ss on the ground of prescrpton was dened4 D fled hs answer n due course andthence tral was held. fter tral4 #udg"ent was renderd aganst D who then fled a "otonto ds"ss for lac6 of #ursdcton on the ground that 1 dd not pay the correct doc6et feeswhch should ha!e $een assessed on the $ass of the !alue of the property and da"agessought and not on the $ass of the acton as one for specfc perfor"ance when t wasactually for reco!ery of property. Rule on the "oton to ds"ss. &+3()

A' otion to dismiss denied. In the first place, the action is really for recovery of real property andnot for specific performance since *2s primary objective is to regain the ownership andpossession of the parcel of land. In the second place, although the payment of the proper docketfees is a jurisdictional requirement, the trial court may allow the plaintiff to pay the same within areasonable time before the e6piration of the applicable prescriptive or reglementary period. Inany event, the balance between the appropriate docket fees and the amount actually paid by theplaintiff will always be considered a lien on any judgment * may obtain. hirdly, the motion todismiss came too late. 7 is already estopped from raising the issue of jurisdiction after he hadactually taken part in the very proceedings which he questions and after the court had rendered a

judgment adverse to him. ($ee ?ational $teel orp. vs. ourt of Appeals, #! $%A "!! -!nd7iv. +;;;)

Q0 7here the defendant has $een declared n default4 does the plantff stll ha!e topresent e!dence to support hs co"plant n order for h" to o$tan #udg"ent thereon%

&'()

A' ?o need. he ourt may render judgment granting plaintiff such relief as his pleading maywarrant unless in its discretion the court requires him to submit evidence. (%ule ; $ec. #)

7ismissals

Q. cton $y 1 aganst D n the RTC for reco!ery of a parcel of land. fter #onder of thessues $ut $efore actual tral4 1 fled a "anfestaton that he s no longer nterested nprosecutng hs co"plant pro!ded4 howe!er4 the defendant foregoes wth hscountercla". D fled a counter2"anfestaton agreeng to the ds"ssal of the co"plantand hs counter cla". 7hereupon4 the RTC ssued an order ds"ssng plantffsco"plant and defendants countercla" wthout costs. 1s successor2n2nterest now

sues to reco!er the sa"e parcel4 and Ds successor2n2nterest "o!es to ds"ss ths newco"plant on the ground of res judicata. If you were the #udge4 would you grant the"oton to ds"ss% &+,, dter" @Aa" IIa)

A. ?o. 7ismissal of the first case was without prejudice. he dismissal having been at plaintiff2sinstance and not having specified that it was with prejudice, it is one Kwithout prejudiceK within themeaning of $ec. !, %ule +:. Lergara v. Dcumen, ++9 $%A 990 (+;&!).

Q. Relyng on a docu"ent of sale4 1 sued D n the RTC to reco!er ownershp of a parcel ofland. 9or falure of 1 to a"end hs co"plant confor"a$ly to an order of the court4 the

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co"plant was ds"ssed. "onth thereafter4 1 re2fled the sa"e co"plant n the RTC4and ths co"plant s now "et wth a "oton to ds"ss $y D on the ground of res #udcata.Resol!e the "oton to ds"ss. &+,, dter" @Aa" BIIIa)

A. otion to dismiss granted. he dismissal of the first case was with prejudice pursuant to

$ection #, %ule +:. herefore, all requisites for res judicata are present. (@nrique4 v. 3oyles,!!0 $%A 000 #rd 7iv., +;;#)

Q. ay a court ds"ss an acton for falure of plantff>s lawyer to appear at the traldespte due notce% &'()

A. ?o. %+:$# does not authori4e a dismissal on the ground of absence ofcounsel. Fhat the court should do is to grant the plaintiff and hour or two to engage the servicesof a new lawyer. -7ayo v. 7ayo ;" *hil :# (+;"9)

7efaults

Q. In an acton $y 1 aganst D n the RTC for a su" of "oney4 su""ons wth copy of theco"plant was ser!ed on D on ;; prl +,,'. 9or flng hs answer one "onth later wthoutany pre!ous eAtenson of hs t"e to plead and on 1>s "oton4 the RTC declared D ndefault and thereafter rendered #udg"ent $y default aganst h". fter hs "oton forreconsderaton of the default order was dened4 D went to the Ca on certorar andproh$ton to challenge the default order. Is D>s petton tena$le% &+,,? dter" @Aa"BI$)

A. ?o. ertiorari and prohibition are improper because 7 has till an appropriate remedy by wayof a %ule #& petitions for relief. ($ee Bina v. A, +#" $%A 0#: -+;&")

Q. Due to personal n#ures suffered n a !ehcular collsson4 1 sued D for 1s "oton to ds"ss thesa"e co"plant for falure to state a cause of acton%

A. 7ismissal for failure to state a cause of action is an adjudication on the merits and hasres udicata effect, whereas a voluntary dismissal before answer is not. 3esides, the court mightaward attorney2s fees even as it dismisses the case for failure to state cause of action, andplaintiff can avoid this possibility by having the case dismissed.

Q. In what nstances "ay a #udg"ent $y default $e rendered aganst defendant%

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A. (+) Fhen defendant has been declared in default for failure to answer within thereglementary period. (%ule ;, sec #). (!) Fhen defendant refuses to obey discovery order.(%ule !;, $ec #-a)

Q. 7here the defendant was declared n default despte the fact that he had not $een

duly su""oned4 does he stll ha!e to de"onstrate a F"ertorous defenseF as a condtonprecedent to settng asde the default order%

A. ?o more. he default judgment is illegal and the motion to set it aside does not have tobe accompanied by an affidavit of merit. (*onio v IA, +## $%A "::, !nd 7iv -+;;9) 3esides,the theory of the requirement that there would be no purpose served by re/opening the judgmentif defendant would simply lose on the merits in any event does not apply because had thedefendant been notified of the suit, he might have worked out a settlement, or paid the debt, orhimself raised enough funds to pay the debt, rather than to suffer its being sold at a sheriff2s sale.($ee *erlata v Eeights edical enter, Inc, 9&" H$ &, +& $. t. &;0, ;; B!nd :" -+;&&)

E. 1ROBISION8 R@@DI@S

Q. 1 sued D n the RTC on a cla" for 1s property. The sherff attached a ercedes :en5 car found n D>sgarage. Then4 T4 a $rother of D4 fled wth the sherff a thrd party cla"4 T swearng n hsaffda!t of thrd party cla" that hs rght to the possesson of the ercedes :en5 car sder!ed fro" the fact that D purchased ths car wth funds $orrowed fro" h". 7hatacton4 f any4 should the sherff ta6e on T>s thrd party cla"% &'()

A. he sheriff should just ignore 2s third/party claim. he affidavit is insufficient under%":$+9 to cause discharge of the attachment because the claimant alleged that he was a merecreditor of the attachment debtor. does not claim to have a title to or a lien on, the attachedproperty which would entitle him to its possession. -$ee Feadcock v. Dfilada &9 *hil RRR (+;9;)

Q0 Can a te"porary restranng order $e ssued eA2parte% &'()

A' 1es, but effective for :! hours only and this is to be issued by the e6ecutive judge of amultiple/sala court or the presiding judge of a single/sala court and only if the mater is of e6tremeurgency and the applicant will suffer grave injustice and irreparable injury. (%ule "&, $ec. ", !ndpar.)

Q0 In an acton for a su" of "oney4 1 o$taned a wrt of attach"ent and le!ed t on D>spropertes. D fled an answer4 n whch he asserted prescrpton of 1>s alleged cause ofacton as one of hs affr"at!e defenses and on whch he sought a prel"nary hearng. Dalso pleaded a countercla" where he prayed for da"ages arsng fro" the attach"entwhch he cla"ed was "alcously o$taned and "ple"ented. fter the hearng on D>saffr"at!e defense of prescrpton the court found that 1>s cause of acton had alreadyprescr$ed and therefore ordered the ds"ssal of the co"plant as well as D>s

countercla" whch t sad could not re"an for ndependent ad#udcaton. 7th theds"ssal of the countercla"4 can D stll reco!er da"ages aganst the attach"ent $ondfor llegal attach"ent% &+3()

*reliminary Injunction

Q. 1 $ought a house and lot fro" E4 wth a $alance re"anng on the purchase prce $utwhch $alance was secured $y a "ortgage on the pre"ses. Then4 1 sued D4 an occupant4n the RTC to reco!er possesson of the house and lot. fter due tral4 the RTC rendered

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#udg"ent for 1 and ordered D to !acate and del!er the pre"ses to 1. wrt of eAecutonwas4 n due course4 ssued for ths #udg"ent. owe!er4 $efore the wrt of eAecuton could$e carred out4 D4 cla"ng to $e an assgnee of E>s "ortgage4 fled n another RTC a sutfor foreclosure of the "ortgage4 wth prayer for prel"nary n#uncton. Should D $egranted a prel"nary n#uncton to en#on hs e!cton under the #udg"ent n the frst

case% &+,, dter" @Aa" B)

A. ?o. *, as the prevailing party in the first case, is entitled as a matter of right to a writ ofe6ecution. oreover, 7 does not have a clear right in esse which deserves protection by aninjunction he claims the right to foreclose the mortgage by virtue of a supposed assignment tohim by G of the balance of the purchase price secured by a mortgage on the premises. 72s rightto foe close has yet to be established and an injunction is not the instrument to do this. Hlang v.A, !!" $%A 0#: (!nd 7iv., +;;#).

Q. In a petton for relef n the RTC aganst an RTC "oney #udg"ent &already fnal andeAecutory)4 the RTC ssued a prel"nary n#uncton en#onng the eAecuton of thedecson. fter due hearng4 the RTC ds"ssed the petton for relef4 and pettonerappealed the ds"ssal order to the C. 7hle the appeal s pendng4 "ay the #udg"entsought to $e set asde on the petton for relef $e eAecuted% &'() *+,,- dter"s BIIa

A. ?o. he preliminary injunction has not been dissolved and is still in force. %ule #;, $ec. 9refers to an injunction as a principal remedy and not to a preliminary injunction issued as anau6iliary remedy which au6iliary remedies are not dissolved unless the trial court e6pressly saysso. 8or the trial court to have dissolved the preliminary injunction here would have mooted theappeal. (7imaunahan v Arnas, :9 *hil. +"")

*%DLI$ID?AB %@@7I@$ (*reliminary injunction)*B@A7I?C$ (ounterclaim and cross/claim)

Q. In an acton $y 1 aganst D for proh$ton4 1 o$taned a wrt of prel"nary n#unctonaganst D. On certorar to the SC4 the wrt of prel"nary n#uncton was nullfed on theground that the petton was pre"ature $ecause 1 had not eAhausted hs ad"nstrat!e

re"edes. Ta6ng hs cue fro" the SC decson4 D fled a "oton to ds"ss the co"plantfor falure to state a cause of acton and the "oton was granted. fter ths ds"ssalorder $eca"e fnal4 D fled an acton aganst 1 to reco!er da"ages resultng fro" thessuance of the prel"nary n#uncton n the frst case. 1 now "o!es to ds"ss theda"age acton on the ground that t s $arred for not ha!ng $een set up as a co"pulsorycountercla" n the proh$ton case. Rule on 1>s "oton to ds"ss. &+,,? dter" @Aa"III)

A. otion may be tolerably argued both ways. Arguable that 7 had waived his claim for damagesresulting from the unlawfully issued injunction by having moved to dismiss the complaint in whichhe had a compulsory counterclaim. ($ee Int2l ontainer $ervices, Inc. v. A, !+9 $%A 9"0-8irst 7iv., +;;!). It is also arguable however that the case is assimilable to one where theprincipal case was dismissed for lack of jurisdiction in which no claim for damages could have

been presented in that case so that this independent action for damages for the illegal injunctionis not abated ($ee $antos v. A, ;" *hil. #0 (+;"9)

Q. Suppose the "an case s ds"ssed $y #udg"ent after tral and ths #udg"ent sappealed4 what happens pendng appeal to a wrt of prel"nary n#uncton ssued $y thetral court whle the case was pendng wth t% &+3()

A. he preliminary injunction is not ipso facto dissolved if the judgment of dismissal is silenton the matter as, otherwise, the case will become moot despite the appeal. $o, the preliminary

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injunction is dissolved only if the court e6pressly says so. -7imaunahan v. Aranas :9 *hil 9"",90 (+;9#). he rule is different in case of a permanent injunction, in which case %#;, $9e6pressly providing that the judgment granting, dissolving, or denying the injunction isimmediately operative.

Q. Can the TC ssue a wrt of prel"nary "andatory n#uncton n an acton ofunlawful detaner% &'()

A. ?o. Art. #";, ? authori4es an to issue a writ of preliminary mandatory injunctionin forcible entry cases only.

Q. 14 a resdent of San Juan4 etro anla4 entered nto an agree"ent wth D4 aresdent of Que5on Cty4 respectng a pggery $usness n arlao4 :ulacan. TheyHuarreled o!er the "anage"ent and control of the $usness4 and so 1 sued D n RTC2QCwhch ssued a prel"nary n#uncton restranng D4 hs no"nees4 and all personscla"ng under h" fro" enterng the pggery co"pound n arlao4 :ulacan. D "o!ed tolft the prel"nary n#uncton on the ground that t s sought to $e enforced $eyond theterrtoral #ursdcton of the RTC2QC. Resol!e the "oton.

A. otion to lift denied. An injunction to restrain acts committed outside the territorialjurisdiction of the issuing court is valid where the principal business addresses of the parties andthe decisions on the acts to be restrained are located and originated within the court2s jurisdiction.(@mbassy 8arms, Inc. v A, +&& $%A -+;;, !nd 7iv.)

EI. DISCOB@RG

Q0 Fwor6 product ruleF

A' he rule which immuni4es from discovery the notes, impressionss and other work product ofthe lawyer gathered or obtained in preparation for litigation.

7epositions

Q. &a) Can a party ta6e the deposton of a person wthout any showng that the deponentwll $e una!ala$le as a wtness at the tral% &$) If so4 can such deposton $e used ne!dence% &+,, dter" @Aa" IBa$)

A. (a) 1es. Availability of the deponent as a witness at the trial will affect the party2s right to usethe deposition / not his right to take it. $ee 7asmarinas Carments, Inc. v. %eyes, !!" $%A

&!!-!nd 7iv., +;;#). (b) 1es, under the conditions and for the limited purposes stated in $ection9, %ule !9.

Q. Suppose 1 had ntroduced n e!dence a pre2tral deposton of D>s general "anagerwhch contaned a state"ent that the co"pany had no $udget for the current year forrepar of ther !ehcles4 "ay 1 thereafter &.e.4 after the general "anager had testfed for D)ntroduce e!dence that the general "anager>s reputaton for truth and !eracty s $ad%*+,,, U1 :arops I

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A. 1es, by using the deposition as substantive evidence, * had not thereby made the generalmanager his own witness (%ule !9, $ec. &). Eence, the impeachment of 72s witness byreputation evidence is still open to *. oreover, by presenting the general manager2s deposition,* in effect made this general manager an adverse/party witness under %ule +#!, $ec. +! and sohe may be impeached by * as if he was called by 7.

Q. Snce a deposton offcer cannot rule on o$#ectons to e!dence4 what would $e thepont of rasng any o$#ecton to e!dence at the deposton2ta6ng% &'() *+,,- dter"sBII$

A. $ee %ule !9, $ec. !; (e).

%equest for admission

Q. 7here the defendant fals to answer a reHuest for ad"sson ser!ed on h" $y plantffas6ng for ad"sson of all the "ateral allegatons of the co"plant4 what s the plantff>s$est procedural recourse% &'() *+,,, dter" BI

A. Ee should file a motion for summary judgment because the materialallegations of the complaint are not disputed. ($ee Allied RRRRRRR3usiness 7evelopment o.,

RRRRRRvs. A, C% ?o. ++&9#RR, 7ec. 9, +;;R)

Q. ay dsco!ery stll $e resorted to $y a party ltgant e!en after the pro"ulgaton offnal and eAecutory #udg"ent% &'()

A. 1es. $ee %#;, $ections #&/9.

Q. Does a party ltgant en#oy any dsco!ery rghts after the pro"ulgaton of fnal andeAecutory #udg"ent% &'()

A. 1es. $ee %#; $ecs. #&/9.

Q. 7here the defendant fals to answer a reHuest for ad"sson ser!ed on h" $yplantff as6ng for ad"sson of all the "ateral allegatons of the co"plant4 what splantff>s $est procedural recourse%

A. Ee should file a motion for summary judgment because the material allegations of thecomplaint are not disputed. ($ee Allied... 3usiness 7evelopment o. v A, C% ?o. ++&9#0)

Q. The court ssued a su$poena duces tecu" orderng the defendant Fto $rng wthher whate!er docu"ent s n her possesson relat!e to ths case.F Is t poss$le to Huashths su$poena duces tecu" and4 If so4 on what grounds%

A. 1es. Dn ! grounds, to wit' +) it is unreasonable and oppressive as it requires theproduction of numerous books, documents or things that are not properly described or identified

or, !) if the person in whose behalf the subpoena is issued fails to advance the reasonable cost ofthe production thereof. (%ule !+, $ec 9 Hy v Aleonar, ;9 D.C. p +;:+ - +;;# A )

EII. 1R@2TRI8

Q. The co"plant was ds"ssed for falure of the plantff to appear at the pre2tral desptedue notce. ay he re2fle the co"plant% &'() *+,,- dter"s BI$

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A. ?o. he dismissal for non/suit is effectively for failure to prosecute and is therefore anadjudication on the merits under $ection # of %ule +:.

EIII. TRI8

$ubpoena

Q. ay a court order the ""edate arrest of a wtness who has faled to o$ey a su$poenan a case pendng wth t% &+,,? dter" @Aa" E$)

A. ?o. 8ailure to obey subpoena constitutes indirect not direct contempt for which the allegedcontemnor could not be adjudged guilty without hearing. *roperly, the court should first issue anorder requiring the alleged contemnor to show cause why he should not be punished fordisobedience to its process in order to give him a chance to e6plain his failure to appear aswitness. $ee Cardones v. 7elgado, "& $%A "&+ (+;:9).

Q. ow can you4 as a party to a c!l acton4 access a docu"ent under the control of a non2

party% *+,,, U1 :arops BII

A. 3y subpoena duces tecum.

7emurrer to evidence

Q. cton to collect on a pro"ssory note. t the tral4 plantff presented the note throughts records custodan who had no personal 6nowledge of the transacton. fter plantffrested4 the defendant fled a de"urrer to e!dence on the ground that plantff>s e!dencewas "erely hearsay. The tral court granted the de"urrer. On appeal4 howe!er4 the Cre!ersed and re"anded the case to the tral court for further proceedngs. Dd the C actcorrectly% &+3() *;333 9nals I

A. ?o. A should have rendered judgment on the basis of the evidence submitted by petitioner.he evidence was sufficient to support plaintiff2s claim. @ven if plaintiff2s witness had no personalknowledge of the promissory note, this note is still admissible to prove its e6istence and its tenoras these facts are of independent relevance. Hnder section +, %ule ##, defendant is deemed tohave already waived his right to present evidence as, by filing a demurrer, he is deemed to haveelected to stand on the insufficiency of plaintiff2s evidence. (%adiowealth 8inance co. v. 7el%osario, C% ?o. +#&:#;, 5uly 0, !)

Q. ay a court ds"ss an acton for falure of plantff>s lawyer to appear at the traldespte due notce% &'()

EIB. JUDK@NTS

Q. 7hen s a #udg"ent of a tral court consdered to ha!e $een pro"ulgated% &'() *+,,'9nals IIa

A. In civil cases, upon the filing with the clerk of court of the signed decision. In criminal cases,upon the reading of the judgment in the presence of the accused and of any judge of the court inwhich it was rendered.

5udgment on the merits

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Q. In a sut on pro"ssory notes whch stpulated that the nterest due shall $eco"pounded Huarterly4 the RTC rendered #udg"ent orderng D to pay 1 the notes wth+=( nterest per annu". fter the #udg"ent $eca"e fnal and eAecutory4 D tendered to 1an a"ount n full pay"ent of the #udg"ent de$t $ut 1 re#ected ths tender on the groundthat per 1s co"putaton the #udg"ent de$t was "uch "ore. The dfference $etween the

two a"ounts arses fro" the dsagree"ent as to whether the #udg"ent allowed Huarterlyco"poundng of nterestL 1 sad that t dd4 $ut D cla"ed t dd not. D then consgned thea"ount wth the tral court under a "oton prayng for a rulng that the #udg"ent dd notallow Huarterly co"poundng of nterest4 $ut 1 opposed the "oton on the ground that thenterest due "ust $e co"pounded on a Huarterly $ass snce such s the ntenton of thecourt and s necessarly "pled fro" the fndngs of fact n the $ody of the decson. Thetral court ssued an order denyng the Consgnaton and otonP fled $y D and holdngthat 1 was enttled to co"pound nterest Huarterly e!en f the #udg"ent dd not pro!de forsuch co"poundng n ts dspost!e porton4 the reason $eng that such a"$guty sclarfed n the $ody of the decson. Is ths order !ald% &+,, dter" @Aa" E)

A. ?o. he settled doctrine is that if there is a conflict between the body of the decision and thedispositive part, the latter should prevail. It is only when there is an ambiguity in the dispositivepart that the court may resort to the body of the decision to clarify the ambiguity. 3ut this doctrineapplies only when there is a conflict between the body and the dispositive portion. Eere,however, the dispositive part is of the judgment is clear and unambiguous, so that there is nothingto interpret or clarify even if it is in conflict with the statements in the body. In such a case therule is clear, it is the dispositive part that should prevail. he judgment here is clear for thepayment of interest at +&O per annum it cannot be taken to be an interest to be compoundedquarterly. Fhat actually happened may be an oversight on the part of the trial judge in notincluding in the judgment a provision for the payment of compound interest on a quarterly basis.here is a parallel neglect on the part of counsel for * in not seeking a modification of the

judgment before it became final and e6ecutory. he error cannot be cured by amendment it isnot a mere clerical error but a judicial error. Carcia v. Amin ; D.C. !;" (A, +;;)

?unc pro tunc judgments

Q. Ser!ce of su""ons was "ade $y a 1N1 polce"an n the "uncpalty where thedefendant resdes. t plantff>s $ehest4 an affda!t was eAecuted $y the for"er presdng

#udge of the ssung court that he had ssued an order author5ng ser!ce of su""ons $ythe polce"an $ut the court record showed no such appro!al. So4 plantff4 su$"ttng thsaffda!t to the court4 "o!es for the ssuance of an order nunc pro tunc statng thereHuste authorty for ser!ce of su""ons $y ths polce"an. Should ths "oton $egranted% &+,,? dter" @Aa" II$)

A. ?o. A nunc pro tunc entry is an entry made now of something which was previously done tohave the effect as of the former date. Fithout some visible data in the record of the issuance ofsuch an order, a nunc pro tunc entry is not justified. (lichauco v. an *ho, "+ *hil. 00! -+;!#)

5udgments by compromise and upon confession

Q. On 3+ July +,='4 the RTC ssued #udg"ent4 whch was duly ser!ed on the partes onewee6 later4 $ased on co"pro"se $etween 1 and D Corporaton under whch D wassupposed to "a6e pay"ents to 1. On + 9e$ruary +,,;4 due to D>s alleged falure to "a6eso"e of the pay"ent reHured under the co"pro"se #udg"ent4 1 fled an acton n thesa"e RTC to co"pel D to "a6e these pay"ents. In answerng the co"plant4 D ad"ttedthe pro"ulgaton of the co"pro"se #udg"ent $ut alleged that t was entered nto $y tsthen 1resdent wthout the reHuste authorty of the stoc6holders and that t was thereforeultra !res. Can ths defense stll $e entertaned% &+,,? dter" @Aa" BIa)

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A. ?o more. he compromise judgment was immediately final and e6ecutory and its validitycannot be assailed collaterally unless the ground of attack is lack of jurisdiction or an irregularityapparent on the face of the record or because it is vitiated by fraud. (adano v. adano, 9;$%A ## -+;:#)

Q. Can a party "o!e to set asde a co"pro"se #udg"ent% If so4 how and on whatgrounds% *+,,? 9nals B

A. Dnly thru a %ule #& petition for relief and on the grounds stated in this %ule. A %ule #: motion,which presupposes a non/final judgment, is not available because a compromise judgment isimmediately final and e6ecutory. ($amonte v. $amonte, 09 $%A "!9 -+;:").

7eclaratory judgments

Q. ay a thrd2party co"plant $e fled n an acton for declaratory relef% *+,,? 9nals IB

A. ?o. A petition for declaratory relief seeks no positive or affirmative, much less any material,relief beyond the adjudication of the legal rights which are subject of the controversy between theparties. 3ut in a third/party complaint, the defendant or third/party plaintiff is supposed to seekcontribution, indemnity, subrogation or any other relief from the third/party defendant in respect tothe claim of the plaintiff against him. (ommissioner of ustoms vs. loribel, :: $%A 9";-+;::).

Q. :oth plantff and defendant were duly ser!ed copes of the decson on July +.Nether party appeals or fles a "oton for new tral or reconsderaton. 7hen does thsdecson $eco"e fnal%

A. Hpon the date of entry of this decision in the book of entries of judgments. (%ule #0, sec!)

Q. ralroad collson n#ures '3 passengers all of who" $rng separate actonsaganst the ralroad. fter the ralroad wns the frst ;' suts4 a plantff wns n sut ;?.

Should not the doctrne of Fcollateral estoppelF $e appled to allow plantffs ;- through '3auto"atcally to reco!er%

A. ?o. It would be unfair to the defendant railroad since suit !0 may have been for small ornominal damages only so that the railroad had little incentive to defend vigorously. 3esides, the

judgment relied upon in suit !0 as a basis for the estoppel may itself be inconsistent with one ormore previous judgments in favor of the defendant.

Q. ay #udg"ent $e rendered n the alternat!e%

A. 1es. @.g. in a replevin case, the judgment is in the alternative for the delivery of theproperty or for its value in case delivery cannot be made. (%ule 0, sec ;)

EB. R@BI@7 ND CORR@CTION O9 TRI8 COURT @RRORS

Q. cton for $reach of contract $y 1 aganst D n the RTC. On D>s "oton4 the ntaltral was postponed ' t"es. On the ?th resettng of the case for tral4 nether defendantnor hs lawyer appeared although a "essenger of defendant>s lawyer fled then and there a"oton for postpone"ent $y D>s lawyer on the ground that he has another hearng on thesa"e date and t"e n an out2of2town court. The court dened the "oton forpostpone"ent and allowed 1 to present hs e!dence eA2parte and consdered D to ha!e

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wa!ed hs rght to present e!dence. Thereafter4 the court consdered the case su$"ttedfor decson. $out two "onths later4 the court rendered a decson n fa!or of 1 andaganst D. D then fled a petton for certorar wth the Court of ppeals cla"ng that theRTC had acted wth gra!e a$use of dscreton n denyng hs "oton for postpone"ent anddeclarng h" as ha!ng wa!ed hs rght to present e!dence. 7hle ths petton was

pendng n the C4 defendant perfected hs appeal fro" the RTC>s decson to the C also.14 appearng now as pr!ate respondent on the certorar petton4 "o!ed n the C for theds"ssal of the petton on the ground that D had lost hs rght to a!al of the re"edy ofcertorar when he perfected an appeal fro" the RTC decson. Resol!e 1>s "oton tods"ss the certorar petton. &+3()

Q. 7hen s a oton for Reconsderaton of an RTC #udg"ent consdered pro for"a4 andwhat s the rs6 to the "o!ant n flng such a "oton% &'()

A. If based on %#:$+(c), a motion for reconsideration is pro/forma if it does not point outspecifically the findings of conclusions in the judgment which are not supported by evidence orwhich are contrary to law, making e6press reference to the pertinent evidence or legal provisions.-Alvero v. 7ela %osa :0 *hil 9!&, 9#"

If a second % where it is not based on a ground not e6isting or not available where +st % wasmade (%#:$9 ity of ebu v. endo4a 0! $%A 99 (+;:")

It is also pro/forma when it has no notice of hearing or a defective notice of hearing. A pro/forma% will not interrupt period of appeal.

@6traordinary remedies (prerogative writs' certiorari, prohibition and mandamus) as modes ofreview)

Also *%DLI$ID?AB %@@7I@$ (%eplevin)Also *A%I@$ (?ewadditional parties' Intervention)

Q. 1 fled a co"plant for the reco!ery of two $arges fro" the possesson of the 1hlppneCoast Kuard see6ng the ssuance of a wrt of reple!n for the purpose. The tral court4after the flng $y 1 of the reHuste $ond4 ssued a wrt of reple!n for the se5ure of thetwo $arges whch n the "eanwhle were sold to a thrd party. eanwhle4 E fled a "otonfor nter!enton4 cla"ng ownershp o!er the two $arges whch t allegedly acHured for"1 n a pu$lc aucton sale. The tral court dened E>s "oton for lea!e to nter!ene andordered the release of the $arges to 1. Dssatsfed wth ths order4 E fled a petton forcertorar n the Court of ppeals contendng that the tral court gra!ely a$used tsdscreton n denyng E>s "oton for lea!e to nter!ene. ow should the Court of ppealsresol!e the certorar petton% &+,, dter" @Aa" BI)

A. he ourt of Appeals should deny the certiorari petition because other adequate remedieswere available to petitioner for instance, a motion for reconsideration of the order for the

issuance of writ of replevin, or G could have filed a third/party claim over the barges under$ection :, %ule 0, or, of course, G could have instituted the proper action to vindicate its claim tothese barges. 3ut back to the merits of the motion for intervention, the %ules allow suchintervention only where it will not unduly delay or prejudice the adjudication of the rights of theoriginal parties and where the intervenor2s rights may not be filly protected in a separateproceeding. Eere, the barges had already been sold to a third party and to allow G to intervene inthe replevin suit would merely make the proceedings unnecessarily complicated and new andunrelated issues on conflicting claims of ownership, authenticity of documents of title andregularity in the mode of acquisition thereof may be e6pected to be raised. (3ig ountry %anchorp. v. A, !: $%A +0+ - !nd 7iv., +;;#)

/ *rof. 3autista

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Q. Suppose the "an case s ds"ssed $y #udg"ent after tral and ths #udg"ent sappealed4 what happens pendng appeal to a wrt of prel"nary n#uncton ssued $y thetral court whle the case was pendng wth t% &+3()

A. he preliminary injunction is not ipso facto dissolved if the judgment of dismissal is silenton the matter as, otherwise, the case will become moot despite the appeal. $o, the preliminaryinjunction is dissolved only if the court e6pressly says so. -7imaunahan v. Aranas :9 *hil 9"",90 (+;9#). he rule is different in case of a permanent injunction, in which case %#;, $9e6pressly providing that the judgment granting, dissolving, or denying the injunction isimmediately operative.

Q0 :y sheer concdence4 tty. 8ope5 was on the sa"e day4


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Appellate proceedings review and correction by another court on appeal

Q. Is an order denyng a "oton for reconsderaton of a fnal and appeala$le #udg"enttself appeala$le% &+,,? dter" @Aa" I$)

A. Arguably not. Dtherwise, a party2s period to appeal from the final judgment may be undulye6tended whereas the time during which the motion for reconsideration was pending is supposedto be merely deducted from the time to appeal, e6cept in the case of a motion for reconsiderationof a A decision which under %ule 9" completely tolls the time to appeal.

Q. In an acton $y 1 aganst D4 the RTC rendered #udg"ent whch was ser!ed on 1 on 3+July +,,' and on D on 3' July +,,'. On ;3 July +,,'4 D fled hs notce of appeal fro" ths

#udg"ent to the C4 and on the sa"e date 1 fled a "oton fro reconsderaton of the sa"e#udg"ent. Is 1>s "oton for reconsderaton t"ely% &+,,? dter" @Aa" IBa)

A. ?o. he decision had become final in respect to *. he clause Kupon the e6piration of the lastday to appeal by any partyK in $ec. !# of the Interim %ules refers to 7 whose period to appeal hasnot yet e6pired, *2s period to appeal having e6pired on +0 5uly +;;". (see Abe Industries, Inc. v.A, +0! $%A 9& -!nd 7iv., +;&&)

Q. Is there any case where an appeal "ay $e "ade to the SC $y notce of appeal% &+,,s t"ely appeal to the RTC4 thelatter found that he had $een unlawfully wthholdng possesson of the pre"ses for "orethan one year pror to the flng of the co"plant and that therefore the proper acton wasaccon pu$lcana and not unlawful detaner4 and the RTC there$y declared the TCwthout #ursdcton o!er the case and nullfed the proceedngs theren. Now 4 1 fled aRule ?' petton for certorar wth the C aganst ths RTC decson. ow should the Cresol!e the certorar petton% &+,,? dter" @Aa" I

Remedial Law} Civil Procedure} Past Exams of Prof Bautista} Made 2001} by Ateneo} 46 Pages

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