L125-2014/03/21-p.

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CIV PRO Mar. 21, 2014
Cases
Almelor v. CA: The proper remedy for an order denying due course to an appeal is not
Rule 47which is a last resortbut a petition for certiorari (Rule 65).
Diona v. Balangue:
General Rule: Negligence of counsel binds the client
Exception: Lawyer was grossly negligent in their duty to maintain the clients
cause, amounting to a deprivation of due process.
Client has the right to rely on the lawyer. (But see Tolentino, infra)
Tolentino v. Leviste
Exception to Negligence of counsel binds client: gross, reckless,
inexcusable negligence of counsel [amounting to extrinsic fraud]
o VAA: Extrinsic fraud usually contemplates fraud by the third or adverse
party.
VAA/here: Failure to file appellants brief is not extrinsic fraud; it is simple
negligence.
Client also has duty/responsibility to look at the developments of his
case.
o VAA: Compare with Diona, where the aggrieved parties were ordinary
people; this case involved a corporation
Lack of jurisdiction means the court did not have authority to decide the suit. If
the allegations are against the substance of the judgment (i.e. a substantial
error), what is assailed is not an error of jurisdiction, but the exercise of
jurisdiction.
VAA: Classic statement: Rule 47 is not a substitute for lost remedies.
o Important: through no fault of his own requirement; if failure to resort to
other remedies was due to the fault of the petitioner, Rule 47 will not be
granted
POTC v. Africa
Appeal from the decision of an RTC as a Special Commercial Court is via Rule
43, not Rule 65
o Rule 43 because the RTC as SCC here takes over the functions of the SEC
Bote v. Velasco
Any decision on an issue over which the CA had no jurisdiction is void.
Doctrine: You cannot change your theory on appeal;
o Rationale: See case for twin rationale
o Canlas exception: Change in theory would not require presentation
of evidence, i.e. reformulation of theory based on evidence already on
record;
Rationale: both parties will still have a chance to refute each other
PROVISIONAL REMEDIES
Many provisional remedies available in Rules (i.e. SC issuances) and statutes

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N.B. CA can issue these provisional remedies whether or not in the aid of its
appellate jurisdiction (B.P. Blg. 129, 9(1))
o For Sandiganbayan, it can issue provisional remedies [1] in original
actions or [2] in aid of its appellate jurisdiction.

RULE 57
Preliminary Attachment
1

Auxiliary writ, i.e. it cannot exist independently of a main suit

Is garnishment, attachment? YES
Effect of attachment:
o If movable: physically seized
o If incorporeal: frozen
Implication in 1 is the attachment is in lieu of judgment for damages
(see 15)
o As a security for the satisfaction of the judgment that may be recovered.
The limitation is not in the Rule itself, but the philosophy is clear.
o Therefore, only covers money judgments.
o VAA: Not in the rule because it is understood.
Subject matter of attachment need not be the subject matter of the case
Plaintiff or other party, i.e. any claimant (e.g. counter-claimant)

(a) Party who is about to depart from the PHL with intent to defraud
o Creditors is generic, refers to anyone who has a claim under art. 1157
(enumerated)

(b) Embezzlement or fraudulently misapplied or converted

o 5 classifications (see rule): (1) public officer, (2) officer of a corporation,
(3) agents or persons acting on behalf of another, (4) any other person in
a fiduciary capacity, (5) for willful violation of duty [embezzlement does
not apply to the 5th class]

(c) Action to recover possession of property unjustly taken, detained, or

converted
o Understood to cover only personal property

(d) Guilty of fraud

o Former rule: must be dolo causante
o 1997 Rules: dolo causante and dolo incidente
o But see Foundation Specialists v. Betonval: Mere non-payment is not dolo
causante; it must be shown that one deliberately intended not to pay.
VAA: Case seems to imply that rule only refers to dolo causante
But the rule is clear: attachment may issue if the action is against a
party guilty of fraud in (1) contracting the obligation or (2) the
performance thereof.

(e) Part who has or is about to dispose, with intent to defraud

o Refers to title and/or possession

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(f) Party is (i) NRNF (non-resident, not-found in the PHL) or (ii)

whereabouts or identity unknown (on whom summons may be served by
publication)

N.B. Rules for third-party claims in attachment and execution are different

2 Bonds
o Bond: filed by the applicant
o Counter-bond: filed by the party against whom the attachment is sought
Who may issue
o Court where the action is pending
o Court of Appeals
o Supreme Court
Writ of attachment may be effective at any point in the Philippines (last
sentence, 2)
o Cf. writ of injunction, which is limited to the territorial jurisdiction

Four requirements (must be stated in the affidavit)

1. Sufficient cause of action exists
2. One of those mentioned in sec. 1
3. No other sufficient security for the claim
o Writ will only issue if there is no other security
4. Amount due to the applicant (or value of the real property) is as much as
the sum above all legal counterclaims
o i.e. claim of applicant must exceed all legal counterclaims
Who may give affidavit: (1) applicant, or (2) some other person who personally
knows the facts
If not complied with, apply 34 [Rule].

12

13

15

Exceptions to prior or contemporaneous service of summons:

1. Could not be served personally or through substituted service
2. Defendant is resident of the PHL temporarily absent therefrom
3. Defendant is non-resident
4. Action in rem or quasi in rem
Counter-bond will result in discharge
Contemplates filing of application before writ of attachment has been issued.
Bond stands in place of the attached property
Rebutting affidavits not allowed because those originally submitted by the
applicant would suffice
Refers to the execution sale

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16

This rule overrules choice of the judgment obligor (under Rule 39);
attached properties will be solid first.
Applies to all properties attached already
Ordinary execution will apply to unattached properties

20: Damages on account of improper, irregular, or excessive attachment

Level 1: In the trial court, party and his sureties must (in the application) set forth
the facts showing his right to damages and the amount thereof
Level 2: In the appellate court, it may affirm or reverse trial court
Damages here are because there was an improper, irregular, or excessive
attachment; different from damages awarded from the main case
May be applied for before appeal is perfected.
[IMPT SECTION: applies to several provisional remedies, i.e. all in the ROC except
support pendente lite]