elpresidente_1986@yahoo.
com If pressed for time, the author suggests that the reader
UNIVERSITY OF SANTO TOMAS
Facultad de Derecho Civil
BAR STAR NOTES
REMEDIAL LAW - 1
VER. 2010.08.05
copyrighted 2010
Prepared by Prof. Abelardo T. Domondon
(AB (Econ), BSC (Acctg), LLB, MA (Econ), LLM, DCL
(Cand.). Lawyer-CPA-Customs Broker, Management Consultant,
Professor of Law and Pre-Bar Reviewer)
How to use the BAR STAR NOTES. The BAR
STAR NOTES in the form of questions and answers as well as
textual discussion were specially prepared by Prof. Domondon
for the exclusive use of Bar Reviewees who attended his
various lectures. Included in the presentation are doctrines
contained in Supreme Court decisions up to July 2010
The purpose of the BAR STAR NOTES is to provide the
Bar Reviewee with a handy review material which serves as
memory-joggers for the September 26, 2010 Bar Examinations in
Remedial Law. The author tries to second guess what would be
included in the Bar Exams using statistical analysis. The actual
Bar questions may not be formulated in the same manner as the
BAR STAR NOTES. However, the doctrines tested in the Bar
would in all probability be included in these Notes.
should focus his attention on the following:
Nice to know
Should know
Must know and master
It is further suggested that the reader must browse those
without stars.
WARNING:
These materials are copyrighted and/or based on the
writers books on Remedial Law and future revisions. It is
prohibited to reproduce any part of these Notes in any form or any
means, electronic or mechanical, including photocopying without
the written permission of the author. These materials are
authorized for the use only of Reviewees who attended the
authors various lectures. Unauthorized users shall not be
prosecuted but SHALL BE SUBJECT TO THE LAW OF KARMA
SUCH THAT THEY WILL NEVER PASS THE BAR OR WOULD
BE UNHAPPY IN LIFE for stealing the intellectual property of the
author.
INTRODUCTION
GENERAL PRINCIPLES
1. State instances where the Rules of Court have
been liberally construed.
SUGGESTED ANSWER:
a. Where a rigid application will result in manifest failure
or miscarriage of justice, especially if a party successfully shows
that the alleged defect in the questioned final and executory
judgment is not apparent on its face or from the recitals contained
therein;
b. where the interest of substantial justice will be
served;
c. where the resolution of the motion is addressed
solely to the sound and judicious discretion of the court; and
d. where the injustice to the adverse party is not
commensurate with the degree of his thoughtlessness in not
complying with the procedure prescribed. (Haurie, et al., v. Meridien
Resources, Inc., et al., G.R. No. 141820, July 9, 2008 citing Manila Hotel
 2
Corporation v. Court of Appeals, G.R. No. 143574, July 11, 2002, 384
SCRA 520, 524)
2. What is the rule on the retroactive application of
procedural rules ?
SUGGESTED ANSWER: Well-settled is the rule that
procedural laws are construed to be applicable to actions pending
and undetermined at the time of their passage, and are deemed
retroactive in that sense and to that extent. Procedural laws do not
fall under the general rule against retroactive operation of statutes.
(Heirs of Divinagracia v. Hon. Ruiz, etc., et al., G. R. No. 172023, July 7,
2010) Further, the retroactive application of procedural laws does
not violate any personal rights because no vested right has yet
attached or arisen from them.
THE RULE- MAKING POWER OF
THE SUPREME COURT
COURTS, IN GENERAL
1.Under the Constitution, what is the power of the
Supreme Court as to rules of pleadings, practice and
procedure ?
SUGGESTED ANSWER: The Supreme Court shall have
the power to promulgate rules concerning pleading, pleading,
practice, and procedure in all courts. Such rules shall provide a
simplified and inexpensive procedure for the speedy disposition of
cases, shall be uniform for all courts of the same grade, and shall
not diminish, increase, or modify substantive rights.
The Supreme Court shall also have the power to disapprove
rules of procedure of special courts and quasi-judicial bodies.
[Sec. 5 (5), Art. VIII, 1987 Philippine Constitution)
2. What is the power of Congress as to the rules
on pleading, practice and procedure ?
SUGGESTED ANSWER: The provisions of the existing
Rules of Court, judiciary acts, and procedural rules not
inconsistent with this Constitution shall remain operative unless
amended or repealed by the Supreme Court or the Congress.
nd
(2 sentence, Sec. 10, Article XVIII, 1987 Philippine Constitution)
The existing Rules of Court referred to in the above
provision is the 1964 Rules of Court and this Constitution
referred to is the 1987 Philippine Constitution.
Thus, it is clear that the power of Congress is only to
amend or repeal but not to promulgate procedural rules. While
this may be so there is no prohibition under the present
Constitution for Congress to convert procedural rights into
substantive rights.
3. In rendering a decision, should a court take
into consideration the possible effect of its verdict upon the
political stability and economic welfare of the nation ?
SUGGESTED ANSWER: Courts should take into account
only legal issues and evidence submitted, and not issues of
political stability and economic welfare of the nation which are
extraneous to the case.
These factors may have persuasive influence but a decision
should be based on the law, rules of procedure, justice and equity.
However, political stability and economic welfare may be
taken judicial notice of if relevant to the issues raised in the case.
4. What measures ensure the independence
of the courts ?
SUGGESTED ANSWER:
a. The Congress shall have the power to define,
prescribe, and apportion the jurisdiction of the various courts but
may not deprive the Supreme Court of its jurisdiction over cases
st
enumerated in Section 5 hereof. (1 sentence, Sec. 2, Art. VIII,
1987 Philippine Constitution)
b. Members of the judiciary shall enjoy security of
tenure.
c. The Judiciary shall enjoy fiscal autonomy.
d. Appointments to the judiciary shall be made from the
nominees of the Judicial and Bar Council, which appointments do
not need any Commission on Appointment confirmation.
e. Salaries of members of the judiciary shall be fixed by
law and not to be decreased during their continuance in office.
f. Members of the judiciary shall hold office during good
behavior until they reach the age of 70 years or become
incapacitated to discharge the duties of their office.
g. They shall be removed from office only through
impeachment.
h. Only the Supreme Court shall have the power to
discipline judges of lower courts, or order their dismissal.
i. Members of the judiciary shall not be designated to
any agency performing quasi-judicial or administrative functions.
 3
5. What is the extent of judicial power ? . 2. Ordinary civil actions DISTINGUISHED
SUGGESTED ANSWER: It includes the duty of the courts FROM special proceedings. Alternatively, distinguish action
of justice from special proceedings.
a. to settle actual controversies SUGGESTED ANSWER: Action distinguished from special
1) involving rights which are proceeding.
2) legally demandable and a. A special proceeding is a remedy by which a party
3) enforceable, and seeks to establish
b. to determine 1) a status,
1) whether or not there has been a grave abuse 2) a right, or
of discretion amounting 3) a particular fact. [Sec. 3 (c), Rule 1, ROC,
a) to lack or excess of jurisdiction arrangement and numbering supplied] WHILE a civil action is
2) on the part of any branch or instrumentality of one by which a party sues another for
the Government. (Article VIII, Section 1, 1987 Philippine 1) enforcement or protection of a right or
Constitution, numbering and arrangement supplied) 2) the prevention or redress of a wrong. [Sec. 3
(a), Rule 1, ROC, arrangement and numbering supplied]
PART I b. A special proceeding is more informal than actions.
c. A relief in special proceedings may be granted upon
application or motion WHILE a relief in an action must be
CIVIL PROCEDURE (ORDINARY CIVIL ACTIONS), contained in a prayer.
PROVISIONAL REMEDIES AND SPECIAL CIVIL d. Multiple appeals are allowed in special proceedings
ACTIONS WHILE not so in ordinary civil actions.
e. There is a no requirement for a record on appeal with
CIVIL PROCEDURE, IN GENERAL respect to appeals in ordinary civil actions WHILE a record on
appeal may be required for appeals in special proceedings.
1. What is civil procedure ? 3. Explain briefly action in rem and give examples.
SUGGESTED ANSWER: Civil procedure is SUGGESTED ANSWER: An action in rem is a suit to
a. The method of conducting a judicial proceeding determine the right in specific property, against the whole world,
b. to resolve disputes involving private parties equally binding on everybody.
c. for the purpose of enforcing rights or obtaining Examples of actions in rem.
redress for the invasion of rights. 1) Annulment of title.
2) Issuance of land titles
ACTIONS IN GENERAL 3) Annulment of marriage
4) Adoption, etc.
1. Define action. Alternatively, what is a civil action
or a suit ? 4. Explain briefly actions in personam.
SUGGESTED ANSWER: A civil action is one by which a SUGGESTED ANSWER: These are suits
party sues another for a. to enforce personal rights and obligations
a. enforcement or protection of a right or b. brought against the person and
b. the prevention or redress of a wrong. [Sec. 3 (a), Rule c. based on jurisdiction of the person,
1, ROC, arrangement and numbering supplied] 1) although it may involve his right to, or
2) the exercise of ownership of, specific property,
or
3) seek to compel him to control or dispose of it
 4
a) in accordance with the mandate of the
court.
5. Distinguish action in rem FROM action in
personam.
SUGGESTED ANSWER:
a. Action in rem is binding against the whole world
WHILE an action in personam binds a specific person
b. Summons in actions in rem are served by publication
WHILE summons in an action in personam are usually served
personally.
6. Define an action quasi in rem, explain its nature
and give examples.
SUGGESTED ANSWER: An action quasi in rem is one
which while not strictly speaking an action in rem partakes of that
nature and is substantially such. (Valmonte, et al., v. Court of
Appeals, et al., 252 SCRA 92) It is essentially an action against a
person for the recovery of a specific property or rights thereto.
Examples of actions quasi in rem: All proceedings having
for their sole object the sale or other disposition of the property of
the defendant, whether by attachment, foreclosure, or other forms
of remedy, are in a general way thus designated. The judgment
entered in these proceedings is conclusive only between the
parties. (Valmonte, et al., v. Court of Appeals, et al., 252 SCRA 92)
7. Distinguish action quasi in rem FROM an
action in personam.
SUGGESTED ANSWER: The distinctions are the following:
a. In actions quasi in rem the property itself is bound
WHILE in actions in personam it is the person himself who is
bound.
b. In actions quasi in rem service of summons by
publication is in order to afford the defendant due process WHILE
service of summons in actions in personam for the purpose of
obtaining jurisdiction.
c. In actions quasi in rem the recovery is limited only to
the value of the property attached WHILE in actions in personam
there is no such limitation.
8. Distinguish action in rem FROM an action
quasi in rem.
SUGGESTED ANSWER: The distinctions are the following:
a. In actions quasi in rem an individual is named as
defendant WHILE in an action in rem the action is usually directed
against the thing itself.
b. In actions quasi in rem the judgment is conclusive only
between the parties WHILE in an action in rem the judgment binds
the whole world. (Valmonte, et al., v. Court of Appeals, et al., 252
SCRA 92)
9. Give an instance where an action quasi in rem
becomes both an action in rem and in personam.
SUGGESTED ANSWER: If the property is attached and
later the defendant appears, "the cause becomes mainly a suit in
personam, with the added incident that the property attached
remains liable, under the control of the court, to answer to any
demand which may be established against the defendant by the
final judgment of the court. (Villareal, etc., et al., v. Court of Appeals,
et al., G.R. No. 107314, September 17, 1998)
The main action in an attachment or garnishment is in rem
until jurisdiction of the defendant is secured. Thereafter, it is in
personam and also in rem, unless jurisdiction of the res is lost by
dissolution of the attachment. If jurisdiction of the defendant is
acquired but jurisdiction of the res is lost, it is then purely in
personam. (Mabanag v. Gallemore, 81 Phil. 254)
10. Define personal action and give an
example.
SUGGESTED ANSWER: A personal action is one where
the plaintiff seeks the recovery of personal property, the
enforcement of a contract or the recovery of damages. (Gomez, et
al., v. Court of Appeals, et al., G. R. No. 127692, March 10, 2004 citing
Hernandez v. Rural Bank of Lucena, Inc. 81 SCRA 75)
Specific performance is a personal action. Breach of
contract gives rise to a cause of action for specific performance or
for rescission. (Cabutihan v. LNDS Center Construction & Development
Corporation, G.R. No. 146594, June 10, 2002)
Specific performance and/or rescission involving a parcel of
land is a real action and an action in personam but not an action
in rem. While the subject matter is the recovery of two parcels of
land, it does not necessarily follow that the action is already one in
rem. It is one against persons, on the basis of their personal
liability. (Gomez, et al., v. Court of Appeals, et al., G. R. No. 127692,
March 10, 2004 citing Hernandez v. Rural Bank of Lucena, Inc. 81 SCRA
75)

11. Distinguish action in personam FROM
personal action.
SUGGESTED ANSWER: An action in personam is an
action against a specific person on the basis of personal liability
WHILE a personal action is an action where the subject matter is
recovery personal property, the enforcement or resolution of a
contract, or the recovery of damages.
12.Define real action.
SUGGESTED ANSWER: A real action is one where the
plaintiff seeks the recovery of real property.
It is an action affecting title to real property or for the
recovery of possession, or for partition or condemnation of, or
foreclosure of a mortgage on real property. (Gomez, et al., v. Court
of Appeals, et al., G. R. No. 127692, March 10, 2004 citing Hernandez v.
Rural Bank of Lucena, Inc. 81 SCRA 75)
13. Distinguish real actions FROM personal actions.
SUGGESTED ANSWER: The venue of real actions is the
location of the property WHILE the venue of personal actions is
where the party litigants reside.
14. Distinguish action in rem FROM a real
action.
SUGGESTED ANSWER: Action in rem determinative of
manner of service of summons WHILE real action is determinative
of venue.
15. What determines the nature of the action ?
SUGGESTED ANSWER: Nature of action determined by
allegations in complaints and the character of the relief sought.
(Bayani v. Panay Electric Co., Inc. G.R. No. 139680, April 12, 2000)
BEFORE FILING THE SUIT
IS THERE A CAUSE OF ACTION ?
1. Define cause of action.
SUGGESTED ANSWER: A cause of action is the act or
omission by which a party violates a right of another. (Sec. 2, Rule
2, ROC)
5
a 2. What are the elements of a cause of action
?
SUGGESTED ANSWER: The elements of a cause of
action are:
a. A legal right in favor of the plaintiff by whatever
means and under whatever law it arises or it creates;
b. A correlative obligation on the part of the named
defendant to respect or not to violate this right;
c. An act or omission on the part of such defendant
violative of the right of the plaintiff or constituting a breach of the
obligation of the defendant to the plaintiff (Republic Planters Bank, et
al., v. IAC, et al., 131 SCRA 639), for which the latter may maintain
an action for recovery of damages. (Leberman Realty Corporation, et
al, v. Typingco, et al., G.R. No. 126647, July 29, 1998)
3. Action DISTINGUISHED FROM cause of
action.
SUGGESTED ANSWER: The distinctions are:
a. An action is one by which a party sues another for
the enforcement or protection of a right, or the prevention or
redress of a wrong [Sec. 3 (a), Rule 1, ROC] WHILE a cause of
action is the act or omission by which a party violates a right of
another (Sec. 2, Rule 2, ROC), causing damage to another.
b. An action is founded upon procedural law WHILE a
cause of action is determined by substantive law.
4. Define injury.
SUGGESTED ANSWER: Injury is the illegal invasion of a
legal right .(BPI Express Card Corporation v. Court of Appeals, et al., G.
R. No. 120639, September 25, 1998)
5. Define damage.
SUGGESTED ANSWER: Damage is the loss, hurt or harm
which results from the injury and is the recompense or
compensation awarded for such loss, hurt or harm. (BPI Express
Card Corporation v. Court of Appeals, et al., G. R. No. 120639,
September 25, 1998)
6. May the owner of an estate who fenced his
property, as a result of which the tenants (who did not enjoy a
right of way) of the apartment adjoining the property left
because they have no passage way be held liable for
damages to the owner of the apartment ?
 6
SUGGESTED ANSWER: No. The mere fact that the b. Cause of action is a formal statement of the operative
apartment owner suffered losses does not give rise to a right to facts which give rise to such remedial right WHILE right of action is
recover damages. a remedial right belonging to some person;
To warrant the recovery of damages, there must be both a c. Cause of action is a matter of right and depends on
right of action for a legal wrong inflicted by the defendant and substantive law WHILE right of action is a matter of statement and
damage resulting to the plaintiff therefrom. Wrong without is governed by the law on procedure.
damage, or damage without wrong, does not constitute a cause of d. A cause of action is not affected by the running of the
action, since damages are merely part of the remedy for the injury statute of limitations, estoppel, etc., WHILE a right of action is so
caused by a breach or a wrong. affected.
In order that a plaintiff may maintain an action for the
injuries of which he complains, he must establish that such injuries PRESCRIPTION
resulted from a breach of duty which the defendant owed to the
plaintiff, a concurrence of injury to the plaintiff and legal
1. What are the two kinds of prescription ?
responsibility by the person causing it. (Sps. Custodio, et al., v. Court
SUGGESTED ANSWER: The two kinds of prescription are:
of Appeals, et al., 253 SCRA 483)
a. Acquisitive prescription or the acquisition of a right by
the lapse of time.
7. When is a cause of action deemed to accrue ?
b. Extinctive prescription or the loss of right of action by
SUGGESTED ANSWER: A cause of action accrues
the lapse of time. (Cutanda, et al., v. Heirs of Cutanda, et al., G. R. No.
whenever the plaintiff has it in his power to enforce his demand. 109215, July 11, 2000)
(17 R.C.L. 116)
2. X, an illegitimate child of Y, celebrated her
DOES THE RIGHT OF ACTION STILL th
18 birthday on May 2, 2004. A month before her birthday, Y
SUBSIST ? died. The legitimate family of Y refused to recognize X as an
illegitimate child of Y. After countless efforts to convince
them, X filed on April 25, 2008 an action for recognition
1. Define right of action.
against Z, wife of Y. After Z filed her answer on August 14,
SUGGESTED ANSWER: Right of action is the right to
2008, X filed a motion for leave to file an amended complaint
commence and maintain an action.
impleading the three (3) legitimate children of Y. The trial
court admitted the amended complaint on August 22, 2008.
2. How is the right of action lost ?
Has the action of X prescribed ? Explain.
SUGGESTED ANSWER: It is lost through:
SUGGESTED ANSWER: The action has prescribed.
a. Waiver;
If an additional defendant is impleaded in a later pleading,
b. Estoppel;
the action is commenced with regard to him on the date of filing of
c. Laches;
such later pleading, irrespective of whether the motion for its
d. Prescription;
admission, if necessary, is denied by the court. (2nd sentence, Sec.
e. Issue has become moot and academic
5, Rule 1, ROC)

3. Distinguish cause of action FROM right of action. 3. Under Article 1144 of the New Civil Code,
What law governs each ? an action upon a judgment must be brought within 10 years
SUGGESTED ANSWER: from the time the right of action accrues.
a. Cause of action consists of a right belonging to one Is this provision applicable to an action filed in the
person and a wrongful act by another which violates that right
Philippines to enforce a foreign judgment ? Explain.
WHILE right of action is the right to commence and maintain an
action;
 7
SUGGESTED ANSWER: Yes, because Article 1144 does
not make a distinction whether the judgment is rendered by a local
court or a foreign court.
4. What should a court do when the motion to
dismiss is premised on prescription but there is doubt as to
whether the action has prescribed ?
SUGGESTED ANSWER: The more prudent action is for
the court is to continue hearing the same and deny the Motion to
Dismiss. Where it cannot be determined with certainty whether
the action has already prescribed or not, the defense of
prescription cannot be sustained on a mere motion to dismiss
based on what appears to be on the face of the complaint.
[Philippine Airlines, Inc. v. Savillo, etc., et al., G. R. No. 149547, July 4,
2008 citing Sison v. McQuaid, 94 Phil 201, 203-204 (1953)]
Where the ground on which prescription is based does not
appear to be indubitable, the court may do well to defer action on
the motion to dismiss until after trial on the merits.[Ibid., citing
Cordova v. Cordova, 102 Phil 1182 (1958)]
LITIS PENDENTIA
1. What is meant by litis pendentia as a ground for
dismissal of actions ?
SUGGESTED ANSWER: Litis pendentia is a Latin term
which literally means " a pending suit." (Feliciano v. Court of
Appeals, et al., G.R. No. 123293, March 5, 1998)
While it is normally connected with the control which the
court has on a property involved in a suit during the continuance
proceedings (Feliciano, supra), it is more interposed as a ground
for the dismissal of a civil action pending in court. (Sec. 1, par. [e],
Rule 16, ROC).
Litis pendentia as a ground for the dismissal of a civil action
refers to the situation wherein another action is pending between
the same parties for the same cause of action (Sec. 1 [e], Rule 16,
ROC), and that the second action becomes unnecessary and
vexatious.
2. Distinguish litis pendentia as a ground for
dismissal FROM res judicata as a ground for dismissal.
SUGGESTED ANSWER: In litis pendentia there is no
judgment yet as both of the cases are still pending WHILE in res
judicata there is already a judgment on the first case.
Where a litigant sues the same party against whom the
same action or actions, for the alleged violation of the same right,
and the enforcement of the same relief is/are still pending, the
defense of litis pendentia in one case is a bar to the other; and a
final judgment in one would constitute res judicata and thus, would
cause the dismissal of the rest. (Quinsay v. Court of Appeals, et al.,
G.R. No. 127058, August 31, 2000)
3. What are the requisites for litis pendentia to
be invoked as a ground for motion to dismiss ?
SUGGESTED ANSWER: For litis pendentia to be invoked
the concurrence of the following requisites are necessary:
a. identity of parties or at least representation of the
same interest in both actions;
b. identity of rights asserted and reliefs prayed for, the
reliefs must be founded on the same facts and the same basis;
and
c. identity in the two cases should be such that any
judgment that may be rendered the other action will, regardless of
which party is successful, amount to res judicata on the other
action under consideration. (Feliciano v. Court of Appeals, et al.,
G.R. No. 123293, March 5, 1998; Tourist Duty Free Shop, Inc. v.
Sandiganbayan, et al., G. R. No. 107395, January 26, 2000; University
Physicians Services, Inc. v. Court of Appeals, et al., G.R. No. 115045,
January 31, 2000)
4. X sued Y before the Metropolitan Trial
Court (MTC) for forcible entry. Y on the other hand filed suit
against X with the Regional Trial Court (RTC) for recovery of
ownership of the parcel of land from which he (Y) was being
ejected. May the ejectment suit be suspended while the
action for recovery of ownership is pending ? Reason out
your answer.
SUGGESTED ANSWER: No. The pending civil action
involving ownership of the same property subject of the ejectment
proceedings does not result to a suspension of the ejectment
proceedings. This is because of the following reasons:
a. the action in the RTC does not involve physical or de
facto possession. Unlawful detainer and forcible entry suits under
Rule 70 are designed to summarily restore physical possession of
a piece of land or building to one who has been illegally or forcibly
deprived thereof, without prejudice to the settlement of the parties
opposing claims of juridical possession in appropriate
proceedings. These actions are intended to avoid disruption of
public order by those who would take the law in their hands
 8
purportedly to enforce their claimed right of possession. In these
cases, the issue is pure physical or de facto possession, and
pronouncements made on questions of ownership are provision in
nature.
b. on not a few occasions, that the case in the RTC was
merely a ploy to delay disposition of the ejectment proceeding, or
c. that the issues presented in the former could quite as
easily be set up as defenses in the ejectment action and there
resolved. (Amagan, et al., v. Marayag, et al., G.R. No. 138377,
February 28, 2000)
RES JUDICATA
1. Define res judicata as a ground for a motion to
dismiss. Give an example.
SUGGESTED ANSWER: Res judicata is a doctrine which
posits that
a. when a right of fact
1) has been judicially tried and determined by a
court of competent jurisdiction, or
2) an opportunity for trial has been given,
b. the judgment of the court,
1) so long as it remains unreversed,
2) should be conclusive upon the parties and
those in privity with them in law or estate. (De Knecht, et al.
v. Court of Appeals, et al., G.R. No. 108015 and companion case,
May 20, 1998, numbering and arrangement supplied)
ALTERNATIVE DEFINITION: It literally means a matter
adjudged, judicially acted upon or decided, or settled by judgment.
It provides that a final judgment on the merits rendered by a
court of competent jurisdiction is conclusive as to the rights of the
parties and their privies; and constitutes an absolute bar to
subsequent actions involving the same claim, demand or cause of
action. (Bardillon v.Barangay Masili of Calamba, Laguna, G. R. No.
146886, April 30, 2003)
Example of res judicata. Where a party could have
objected to the registration of the realty in question but failed to do
so, res judicata had set in. Reason: a land registration cause is
an action in rem binding upon the whole world. (Villanueva-Mijares,
et al., v. Court of Appeals, et al., G.R. No. 921, April 12, 2000)
2. What is the foundation of res judicata ?
SUGGESTED ANSWER:
a. Public policy and necessity which makes it in the
interest of the State that there should be an end to litigation.
Interest republicae ut sit finis litium.
b. The hardship on the individual if he should be vexed
twice for the same cause. Nemo debet bis vexari et eadem causa.
(Gallardo-Corro v. Gallardo, G.R. No. 136228, January 30, 2001)
3. What are the essential requisites of res
judicata ?
SUGGESTED ANSWER: The requisites of res judicata as
a ground for a motion to dismiss are:
a. The judgment sought to bar the new action must be
final;
b. The decision must have been rendered by a court
having jurisdiction over the subject matter and the parties;
c. The disposition of the case must be a judgment or
on the merits.
d. There must be between the first and second action,
the three identities:
1) Identity of parties,
2) Identity of subject matter, and
3) Identity of causes of action. (Republic, etc. v.
Court of Appeals, et al., G.R. No. 103412, February 3, 2000; Bardillon
v.Barangay Masili of Calamba, Laguna, G. R. No. 146886, April 30, 2003;
Heirs of de Leon vda. De Roxas v. Court of Appeals, et al., G. R. No.
138660, February 5, 2004 )
4. What is judgment on the merits ?
SUGGESTED ANSWER: Judgment on the merits is a
judgment which determines the rights and liabilities of the parties
based on he ultimate facts as disclosed by the pleadings or issues
presented for trial. It is not necessary that there should have been
a trial, actual hearing or arguments on the facts of the case. For
as long as the parties had full legal opportunity to be heard on
their respective claims and contentions, the judgment is on the
merits. (Republic, etc., v. Court of Appeals, et al., G.R. No. 103412,
February 3, 2000)
5. Define identity of parties for purposes of res
judicata.
SUGGESTED ANSWER: For purposes of res judicata, only
substantial identity is required and not absolute identity. Parties in
both cases need not be physically identical provided that there is
privity between the parties or their successors-in-interest
subsequent to the commencement of the previous cause of action,

litigating for the same thing, title, or capacity. (Republic, etc. v. Court
of Appeals, et al., G.R. No. 103412, February 3, 2000)
6. Rolando filed a petition for the annulment
of his marriage to Carmela because of psychological
incapacity of the latter. After trial, the court rendered
judgment dismissing the petition on the ground that Rolando
failed to prove the psychological incapacity of his wife. The
judgment having become final, Rolando filed another petition,
this time on the ground that his marriage to Carmela had
been celebrated without a license, is the second action barred
by the judgment in the first ? Why ?
SUGGESTED ANSWER: No, because there is no identity of
causes of action.
A petition for declaration of the nullity of marriage on the
ground of psychological incapacity is premised upon a different
cause of action for a petition to annul a marriage because there
was no marriage license. This is so because the evidence to
prove them are not the same. (Pagsisihan v. Court of Appeals, et al.,
5 SCRA 540)
7. X sued B for support of her child W.
As a result of a compromise agreement entered into between
X and B the suit was dismissed. Subsequently, X
discovered that the amount she agreed to in the compromise
agreement was not sufficient for the support of C. She now
institutes a new suit for support against B. The latter
interposes res judicata on account of the compromise
agreement. Rule on Bs defense.
SUGGESTED ANSWER: Bs defense is without merit.
There is no res judicata where an action for support was
dismissed through a compromise as the same is not allowed to be
the subject of a compromise. (Art. 2035,Civil Code; De Asis v. Court
of Appeals, et al., 303 SCRA 176)
8. What are the aspects or concepts of res judicata
? therein or necessary thereto
SUGGESTED ANSWER: The two aspects or concepts of
res judicata are:
First: Bar by former judgment. A judgment in a first
action is a bar to the prosecution of a second action upon the
same claim, demand or cause of action.
Second: Conclusiveness of judgment. A judgment in a
first action precludes the relitigation of a particular fact or issue in
9
another action between the same parties or their successors-in-
interest, on a different claim or cause of action. (Roxas v. Galindo,
108 Phil. 587; Sps. Barretto v. Court of Appeals, et al., G.R. No. 110259,
February 3, 2000; Spouses Serrano v, Court of Appeals, et al., G.R. No.
122930, February 6, 2002)
9. What is the essence of res judicata through bar
by former judgment ? Illustrate by example.
SUGGESTED ANSWER: Assuming that the court which
rendered the judgment has jurisdiction,
a. said judgment is,
1) with respect to the matter directly adjudged,
2) or as to any other matter that could have been
raised in relation thereto,
b. conclusive between the parties and their successors
in interest by title
1) subsequent to the commencement of the
action or special proceeding,
2) litigating for the same thing and under the
same title and in the same capacity. (Sec. 47 [b], Rule 39,
ROC arrangement and numbering supplied)
Example of bar by former judgment: A judgment rendered
upon a promissory note is conclusive as to the validity of the
instrument and the amount due upon it, although it be
subsequently alleged that perfect defenses actually existed of
which no proof was offered, such as forgery, want of consideration
or payment. (Penalosa v. Tuason, 22 Phil. 303)
10. What is the concept of conclusiveness of
judgment ? Give examples.
SUGGESTED ANSWER:
a. That only is deemed to have been adjudged in a
former judgment or final order
1) which appears upon its face to have been so
adjudged, or
2) which was actually and necessarily included
b. are conclusive between the parties. [Sec. 47 (c), Rule
47, ROC, arrangement and numbering supplied]
Examples of conclusiveness of judgment:. In an action to
recover several installments due and unpaid on a promissory note
without an acceleration clause, the judgment declaring the
promissory note to be genuine is conclusive between the parties
or their successors-in-interest in a subsequent action to recover
 10
succeeding installments due and unpaid. (Penalosa v. Tuazon, 22 13. What is the reason why a court could not nullify
Phil. 303) judgments of another court of equal rank and category ?
The negligence of the shipping line which issue had already SUGGESTED ANSWER: To avoid conflict of power
been passed upon in a case filed by one of the insurers, is between two different courts of equal or coordinate jurisdiction
conclusive and can no longer be relitigated in a similar case filed which would surely lead to confusion and seriously hinder the
by another insurer against the same shipping line on the basis of proper administration of justice. (Gallardo-Corro v. Gallardo, G.R. No.
the same factual circumstances. [Rizal Surety & Insurance Company 136228, January 30, 2001)
v. CA, et al., G.R. No. 112360, July 18, 2000 citing Smith Bell and
Company (Phils.), Inc. v. Court of Appeals, 197 SCRA 201]
LAW OF THE CASE
11. Distinguish bar by prior judgment FROM
conclusiveness of judgment. 1. What is the law of the case ?
SUGGESTED ANSWER: SUGGESTED ANSWER: Under the law of the case
a. Basis: There is bar by former judgment if all the concept,
identities (parties, subject matter and cause of action) are present a. whatever is once irrevocably established as the
WHILE in conclusiveness of judgment there is no identity of controlling legal principle or decision
causes of action between the two cases, all other requisites b. continues to be the law of the case between the
(identities of parties and subject-matter) being present. same parties in the same case,
b. As to effect. In bar by former judgment, the first c. whether correct on general principles or not, so long
judgment constitutes an absolute bar to all matters directly as the facts on which such decision was predicated continue to be
adjudged as well as matters that may have been adjudged WHILE the facts of the case before the court.
in conclusiveness of judgment, the first judgment is conclusive
only on matters actually litigated and adjudged in the first action. 2. What is the rationale for law of the case ?
(Penalosa v. Tuazon, 22 Phil. 303) SUGGESTED ANSWER: Such stability and
conclusiveness given to final judgments of courts of competent
12. Distinguish from each other: res judicata, law of jurisdiction are said to be grounded on reasons of public policy,
the case and stare decisis. judicial orderliness and economy as well as protection of the time
SUGGESTED ANSWER: Res judicata simply means and interests of the litigants. x x x (Ducat v. Court of Appeals, et al.,
finality of judgments, or that issues decided in a case in a decision G.R. No. 119652, January 20, 2000; Ducat v. Sheriff Carpio, A.M. No. P-
that has become final and executory cannot be litigated again by 00-1358, January 20, 2000)
the same parties in a subsequent action involving the same matter
(Penalosa v. Tuason, 22 Phil. 303) WHILE law of the case means that ISSUE HAD BECOME MOOT AND ACADEMIC
legal conclusions pronounced on a first appeal, whether on the
general law or the law as applied to concrete facts, not only 1. What is the effect on the action if the issue has
prescribe the duty and limit the power of the trial court to strict been rendered moot and academic ? Why ?
obedience and conformity thereto, but they become and remain SUGGESTED ANSWER: The court should decline
the law of the case in all stages, whether in the lower court or in jurisdiction.
the appellate court on a subsequent appeal (Zarate v. Director of Courts of justice are constituted to pass upon substantial
Lands, 39 Phil. 747) WHILE stare decisis means the doctrine that rights will not consider questions in which no actual interests are
when the court has once laid down a principle of law as applicable involved; they decline jurisdiction of moot cases. (Presidential Ad
to a certain state of facts, it will adhere in principle and apply it to Hoc Committee on Behest Loans, etc., v. Tabasondra, et al., G. R. No.
all future cases where the facts are substantially the same. 13375, July 4, 2008, and companion case citing Lim v. Ang, G.R. No.
(Government v. Jalandoni, 49 O.G. 1480) 152429, 18 March 2005, 453 SCRA 802, 811)
 11
Where the issue has become moot and academic, there is special proceeding is to establish the status or right of a party, or a
no justiciable controversy, so that a declaration thereon would be particular fact.
of no practical use or value. (Ibid.)
2. Name the different provisional remedies
ARE THERE AVAILABLE ADEQUATE and explain briefly the nature of each.
SUGGESTED ANSWER: The provisional
RELIEFS AND REMEDIES ? a. Preliminary attachment,
b. Preliminary injunction,
1. What is a remedy ? c. Receivership,
SUGGESTED ANSWER: A remedy is d. Replevin, and
a. a procedure or type of action e. Support pendente lite. (Rules 57 to 61, ROC)
b. which may be availed of by the plaintiff
c. as the means to obtain the relief desired. 3. What is the purpose of provisional
remedies ?
2. What is a relief ? SUGGESTED ANSWER: The purpose of provisional
SUGGESTED ANSWER: A relief is remedies is to preserve or protect the rights or interests of the
a. a redress, protection, award of coercive measure parties during the pendency of the principal action. (Calo v. Roldan,
b. which the plaintiff prays the court to render in his 76 Phil. 445)
favor
c.
defendant.
as a consequence of the wrong committed by the
PRELIMINARY ATTACHMENT

1. Define attachment.
ARE PROVISIONAL REMEDIES NECESSARY ? SUGGESTED ANSWER: Attachment is taking the
defendants property into the custody of the court either at the
THE PROVISIONAL REMEDIES commencement of the action or during the pendency of the action
in order to serve as a security for the satisfaction of any judgment
1. Define provisional remedies. that may be recovered by the plaintiff against the defendant. As
SUGGESTED ANSWER: Provisional remedies are those to such it is known as a preliminary attachment.
which parties litigants may resort for the preservation or protection Attachment may also refer to the taking of the losing partys
of their rights or interest, and for no other purpose, during the property in order to answer for the satisfaction of the final and
pendency of the principal action. (Calo v. Roldan, 76 Phil. 443; III executory judgment in his favor. It is known as a final attachment.
Moran, p. 1)
2. Distinguish order of attachment FROM a
2. Distinguish provisional remedy FROM a notice of lis pendens.
special proceeding. SUGGESTED ANSWER:
SUGGESTED ANSWER: a. An order of attachment constitutes a specific lien
a. A provisional remedy is ancillary to a main case, upon the attached property which ripens into a judgment against
whether it is an action or a special proceeding WHILE a special the res when the order of sale is made WHILE a notice of lis
proceeding is a main case. pendens charges the stranger with notice of the particular litigation
b. The relief sought in a provisional remedy is merely referred to in the notice; and if the notice is effective, a third
temporary in character which is the preservation or protection of person who acquires the property affected by the lis pendens
the rights or interest of the parties, and for no other purpose, takes it subject to the eventuality of the suit.
during the pendency of the principal case WHILE the object of a
 12
b. Attachment is proper both in real and personal d. shall be liable to the applicant for the amount of such
actions and in criminal cases, WHILE notice of lis pendens is credits, debts or other similar personal property,
proper only in real actions. e. until
1) the attachment is discharged, or
3. Enumerate and discuss the different kinds 2) any judgment recovered by him is
of attachment. satisfied,
SUGGESTED ANSWER: The different kinds of attachment a) unless such property is delivered or
are: transferred,
a. Preliminary attachment b) or such debt is are paid, to the clerk,
b. Garnishment sheriff, or other proper officer of the court issuing the
c. Levy on execution or final attachment. attachment. (ROC, Rule 57, Sec. 8, arrangement and numbering
supplied)
4. What is a writ of preliminary attachment ?
SUGGESTED ANSWER: A writ issued by the court, at the 7. Define final attachment ?
commencement of the action or at anytime before entry of SUGGESTED ANSWER: It is a writ issued to authorize the
judgment attaching the property of an adverse party as a security taking of the losing partys property for the enforcement of a
for the satisfaction of any judgment that may be recovered against judgment that become final and executory.
him. (Sec. 1, Rule 57, ROC)
8. Distinguish the following from one another:
5. What is garnishment ? a) Preliminary attachment b) Garnishment c) Levy on
SUGGESTED ANSWER: Garnishment is a species of execution.
attachment or execution for reaching credits belonging to the SUGGESTED ANSWER:
judgment debtor and owing to him from a stranger to the litigation. a. Attachment is a provisional remedy that effects a levy
(Bautista v. Barredo, L-20653, April 30, 1965) on the property of a party even prior to the hearing of the case
Garnishment is taking the property of the judgment debtor WHILE garnishment, which is not a provisional remedy, is a levy of
(usually money) that is in the possession of a third party or a property of the defeated party after hearing the case.
stranger to a suit, such as a bank. b. The property taken under attachment is held as
security to answer for the satisfaction of any judgment WHILE the
6. What is the effect of garnishment upon property taken under garnishment is nor merely as a security but
persons served with notice thereof ? as part of the satisfaction of judgment.
SUGGESTED ANSWER: c. Under attachment the property is usually in the
a. All persons possession of the party litigant himself WHILE under garnishment,
1) having in their possession or under their the property is in the possession of a third party.
control d. Real or personal property may be the subject of an
a) any credits or other similar personal attachment WHILE the subject of garnishment is personal
property property, usually debts or security.
b) belonging to the party against whom
attachment is issued, 9. When should a motion for the issuance of a writ
b. or owing any debts to him, of preliminary attachment be filed ?
c. at the time of service upon them of SUGGESTED ANSWER: At the commencement of the
1) the copy of the writ of attachment and action or at any time before the entry of judgment. (Sec. 1, Rule
2) notice as provided in the last preceding 57, Rules of Court)
section,
 13
10. Who may file a motion for the issuance of a writ It may proper only upon showing by affidavit that the value
of preliminary attachment ? of the mortgaged property is not sufficient to cover the debt and
SUGGESTED ANSWER: A plaintiff or any proper party. the debtor has disposed of or about to dispose of his property with
(Sec. 1, Rule 57, ROC) A defendant may be considered as a intent to defraud his creditors. (Reyes v. Court of First Instance of
proper party for purposes of applying for the issuance of a writ of Batangas, 55 Phil. 408)
preliminary attachment upon his counterclaim, cross-claim or third This is so because the purpose of attachment as a
(fourth, etc.) party complaint. provisional remedy is to secure property of the defendant as a
security for satisfaction of any judgment in favor of the plaintiff.
11. in what cases should a writ of attachment
be granted ? In the alternative what are the grounds for the 13. What are the requisites before an order of
issuance of a writ of preliminary attachment ? attachment may be issued ?
SUGGESTED ANSWER: A writ of preliminary attachment SUGGESTED ANSWER: Affidavit and bond required. An
may issue: order of attachment shall be granted only when it appears
a. In an action for the recovery of a specified amount of a. by the affidavit of the applicant, or of some other
money, other than moral and exemplary, on a cause of action person who personally knows the facts,
arising from law, contract, quasi-contract delict or quasi-delict 1) that a sufficient cause of action exists,
against a party who is about to depart from the Philippines with 2) that the case is one of those were
intent to defraud his creditors; attachment may issue,
b. In an action for money or property embezzled or 3) that there is no other sufficient security for
fraudulently misapplied or converted to his own use by a public the claim sought to be enforced by the action, and
officer, or an officer of a corporation, or an attorney, factor, broker, 4) that the amount due to the applicant, or the
agent, or clerk, in the course of his employment as such, or by any value of the property the possession of which he is entitled to
other person in a fiduciary capacity, or for a willful violation of duty; recover, is as much as the sum for which the order is granted
c. In an action to recover the possession of property above all legal counterclaims.
unjustly or fraudulently taken, detained or converted, when the b. The affidavit, and the bond required xxx, must be
property, or any part thereof, has been concealed, removed, or duly filed with the court before the order issues. (ROC, Rule 57,
disposed of to prevent its being found or taken by the applicant or Sec. 3, arrangement, numbering, paraphrasing and words in italics
an authorized person; supplied)
d. In an action against a party who has been guilty of a
fraud in contracting the debt or incurring the obligation upon which 14. What are the conditions of the bond which
the action is brought, or in the performance thereof; an applicant for the issuance of a writ or preliminary
e. In an action against party who has removed or attachment is required to file with the court ?
disposed of his property, or is about to do so, with intent to defraud SUGGESTED ANSWER: The party applying for the order
his creditors; or must thereafter give a bond
f. In an action against a party who does not reside or is a. executed to the adverse party
not found in the Philippines, or on whom summons may be served b. in the amount fixed by the court in its order granting
by publications. (Sec. 1, Rule 57, ROC) the issuance of the writ,
c. conditioned that the latter will pay
12. Can an order of attachment be properly 1) all the costs which may be adjudged to the
issued in case of foreclosure of mortgage ? adverse party and
SUGGESTED ANSWER: Yes, an order of attachment can 2) all damages which he may sustain by reason
be properly issued in case of foreclosure of mortgage on property of the attachment, if the court shall finally adjudge that the
of the defendant not converted by the mortgage. applicant was not entitled thereto. (ROC, Rule 57, Sec. 4,
arrangement and numbering supplied)
 14
15. Who may issue an order of attachment.
SUGGESTED ANSWER: An order of attachment may be
issued either ex parte or upon motion with notice and hearing by
a. the court in which the action is pending, or by
b. the Court of Appeals or
C. the Supreme Court, xxx (1st sentence, Sec. 2,
Rule 57, ROC)
16. What are the contents of an order of
attachment ?
SUGGESTED ANSWER: The order of attachment
a. must require the sheriff of the court to
b. attach so much of the property in the Philippines of
the party against whom it is issued,
1) not exempt from execution,
2) as may be sufficient to satisfy the applicants
demand,
c. unless such party makes deposit or gives a bond as
hereinafter provided
1) in an amount equal to that fixed in the order,
2) which may be the amount sufficient to satisfy
the applicants demand
3) or the value of the property to be attached as
stated by the applicant, exclusive of costs. (1st sentence,
Sec. 2, Rule 57 arrangement and numbering supplied)
17. May a writ of preliminary attachment be
issued ex-parte ? Why ?
SUGGESTED ANSWER: Yes. An order of attachment
may be issued either ex-parte or upon motion with notice and
hearing by the court in which the action is pending, or by the Court
of Appeals or the Supreme Court. (Sec. 2, Rule 57, ROC)
It may be issued ex-parte because to require notice to the
adverse party would defeat the purpose of attachment and enable
the adverse party to abscond or dispose of his property before the
issuance of the writ. (Mindanao Savings and Loan Association, Inc. v.
Court of Appeals, et al., 172 SCRA 480)
18. What is the principle of prior or
contemporaneous jurisdiction in attachment ?
SUGGESTED ANSWER: A levy on attachment pursuant
to the writ of preliminary attachment shall be enforced only if it is
preceded, or contemporaneously accompanied by service of
summons, together with a copy of the complaint, the application
for attachment, the applicants affidavit and bond, and the order
and writ of attachment on the defendant within the Philippines. (1st
par., Sec. 5, Rule 5, ROC)
19. Katy filed an action against Tyrone for
collection of the sum of P1 Million in the Regional Trial Court,
with an ex-parte application for a writ of preliminary
attachment. Upon posting of an attachment bond, the court
granted the application and issued a writ of preliminary
attachment.
Apprehensive that Tyrone might withdraw his savings
deposit with the bank, the sheriff immediately served a notice
of garnishment on the bank to implement the wit of
preliminary attachment. The following day, the sheriff
proceeded to Tyrones house and served him the summons,
with copies of the complaint containing the application for
writ of preliminary attachment, Katys affidavit, order of
attachment, writ of preliminary attachment and attachment
bond.
Within fifteen (15) days from service of the summons,
Tyrone filed a motion to dismiss and to dissolve the writ of
preliminary attachment on the following grounds: (i) the
court did not acquire jurisdiction over his person because the
writ was served ahead of the summons; (ii) the writ was
improperly implemented; and (iii) said writ was
improvidently issued because the obligation in question was
already fully paid.
Resolve the motion with reasons.
SUGGESTED ANSWER: Motion granted. There was no
need for the writ if Tyrone would be able to adduce evidence to
show that the obligation was already paid because there is nothing
more to be secured by the ancillary writ of preliminary attachment.
Furthermore, if his motion to dismiss was premised on the
ground that the claim has been paid [Sec. 1 (h), Rule 16, ROC) then
the writ of preliminary attachment being merely a provisional
remedy would have no basis for its continued existence.
20. Give instances where the principle of prior
or contemporaneous jurisdiction does not apply
Alternatively, when is there no need for prior or
contemporaneous service of summons for the validity of the
enforcement of a writ of attachment that was issued ex-parte
?
 15
SUGGESTED ANSWER: The requirement of prior or
contemporaneous service of summons shall not apply where
a. the summons could not be served personally or by
substituted service despite diligent efforts, or
b. the defendant is a resident of the Philippines
temporarily absent therefrom, or
c. the action is one in rem or quasi in rem. (last par.,
Sec. 5, Rule 57, ROC, arrangement and numbering supplied)
21. What are the grounds for quashing a writ of
attachment ?
SUGGESTED ANSWER: The following are the grounds:
a. By filing a counterbond immediately (Sec. 12, Rule
57, ROC). The cash deposit or the counter-bond shall secure the
payment of any judgment that the attaching party may recover in
the action. (4th sentence, Sec. 12, Rule 57, ROC)
b. By moving to quash on the ground of
1) Improper and irregular issuance (Sec. 13, Ibid.;
Chuidian v. Sandiganbayan, G.R. No. 139941, January 19, 2001)
2) The bond filed by the applicant is insufficient.
(Sec. 13, Ibid.)
22. C, with D, as bondsman, secured the
attachment of the properties of defendant, X, who by filing a
counterbond, had the attachment dissolved.
Defendant X after judgment was rendered in his favor
now holds D liable on his bond for the damages he (X)
suffered for the unwarranted suit and the wrongful and
malicious attachment. D moves to dismiss the damage suit
on the ground that the dissolution of the attachment rendered
the attachment bond void and ineffective under Sec. 12 of
Rule 57, which provides that upon the filing of the
counterbond, the attachment is discharged or dissolved.
Decide with reasons.
SUGGESTED ANSWER: Motion to dismiss granted
because it is apparent that the claim for damages was brought in a
separate suit.
The claim for damages should be brought in the same
action and court where the attachment was secured and the bond
was filed.
23. What properties may not be the subject of
attachment ?
SUGGESTED ANSWER: Properties that are exempt from
execution, such as the following, may not be attached:
a. The judgment obligors family home as provided by
law (ROC, Rule 57, Sec. 2 in relation to Rule 39, Sec. 13)
24. The property of an incompetent under
guardianship was in custodia legis, can it be attached?
Explain.
SUGGESTED ANSWER: Yes. However, a copy of the writ
of attachment shall be filed with the proper court and notice of the
attachment served upon the custodian of the property. (last par.,
Sec. 7, Rule 57, ROC)
25. May damages be claimed by a party
prejudiced by a wrongful attachment even if the judgment is
adverse to him? Explain.
SUGGESTED ANSWER: Yes. Even if the judgment is
adverse, a claim for damages may be made on account of
improper, irregular or excessive attachment, which shall be heard
with notice to the adverse party and his surety or sureties. (Sec.
20, Rule 57, ROC)
26. What is the procedure to be followed where
there is damage suffered as a result of improper, irregular or
excessive attachment ?
SUGGESTED ANSWER:
a. An application must be filed before the trial or before
appeal is perfected or before the judgment becomes executory,
b. with due notice to the attaching party and his surety
or sureties,
c. setting forth the facts showing his right to damages
and the amount thereof. Such damages may be awarded only
after proper hearing and shall be included in the judgment on the
main case. (1st par., Sec. 20, Rule 57, ROC, numbering and
arrangement supplied)
d. If the judgment of the appellate court be favorable, to
the party against whom the attachment was issued,
1) he must claim damages sustained during the
pendency of the appeal
2) by filing an application in the appellate court,
3) with notice to the party in whose favor the
attachment was issued or his surety or sureties,
4) before the judgment of the appellate court
becomes executory.
 16
The appellate court may allow the application to be heard
and decided by the trial court. (2nd par., Sec. 20, Rule 57, ROC)
27. What is the extent of recovery of a party who is
damaged by an attachment ?
SUGGESTED ANSWER: The recovery is limited only to
the amount of the bond. However, nothing in the Rules shall
prevent the party against whom the attachment was issued from
recovering in the same action the damages awarded to him from
any property of the attaching party not exempt from execution
should the bond or deposit given by the latter be insufficient or fail
to fully satisfy the award. (last par., Sec. 20, Rule 57, ROC)
28. The plaintiff obtained a writ of preliminary
attachment upon a bond of P1 million. The writ was levied on
the defendants property, but it was discharged upon the
posting by the defendant of a counterbond in the same
amount of P1 million. After trial, the court rendered judgment
finding that the plaintiff had no cause of action against the
defendant and that he had sued out the writ of attachment
maliciously. Accordingly, the court dismissed the complaint
and ordered the plaintiff and its surety to pay jointly to the
defendant P1.5 million as actual damages, P0.5 million as
moral damages and P0.5 million as exemplary damages.
Evaluate the soundness of the judgment from the point
of view of procedure.
SUGGESTED ANSWER: The judgment is not sound
because there was no showing in the problem that notice was
given to the surety of the application for damages.
Furthermore, the judgment against the surety should not
exceed the amount of his commitment on the bond as which is P
million.
29. What is the remedy of a third party whose
property is the subject of attachment but is not a party to the
suit ?
SUGGESTED ANSWER: If the property is claimed by any
person other than the party against whom the attachment had
been issued or his agent, such person
a. Must make an affidavit of his title thereto, or right to
the possession thereof, stating the grounds of such right or title,
and
b. Serves such affidavit
1) Upon the sheriff while the latter has possession of
the attached property, and
2) a copy thereof upon the attaching party
c. If he suffered damages, he shall then file an action
within 120 days from the date of the filing of the bond, and enforce
his claim for damages against the bond. (Sec. 14, Rule 57,ROC)
30. When is the sheriff not bound to keep the
property ?
SUGGESTED ANSWER: Upon service of the affidavit the
sheriff is not bound to keep the property, unless the attaching
party or his agent, one demand of the sheriff, shall file a bond
approved by the court to indemnify the third-party claimant in a
sum not less than the value of the property levied upon. In case of
disagreement as to such value, the same shall be decided by the
court issuing the writ of attachment. (1st par., Sec. 14, Rule 57, ROC)
The sheriff shall not be liable for damages for the taking or
keeping of such property, to any third-party claimant, if such bond
shall be filed. (2nd par., Ibid.)
31. What are remedies of a third-party claimant and
the attaching party ?
SUGGESTED ANSWER: The third-party claimant is not
prevented from vindicating his claim to the property. Neither is the
attaching party prevented from claiming damages against a third-
party claimant who filed a frivolous or plainly spurious claim, in the
same or a separate action. (2nd par., Sec. 14, Rule 57, ROC)
INJUNCTION, IN GENERAL
1. What is an injunction ?
SUGGESTED ANSWER: It is an order of a court requiring
a party or a court, agency or a person to refrain from a particular
act or acts or to perform a particular act or acts.
2. What are the kinds of injunctions ?
SUGGESTED ANSWER: Injunctions may be
a. a provisional remedy or a main case in which it may
either be a preliminary injunction or a final injunction.
b. prohibitory or mandatory.
3. What is a prohibitory injunction ?
 17
SUGGESTED ANSWER: An order issued by a court
requiring a party or a court, agency or a person to refrain from a
particular act or acts.
PRELIMINARY INJUNCTION
1. What is a writ of preliminary injunction and what
is its purpose ?
SUGGESTED ANSWER: A preliminary injunction is an
order granted at any stage of an action or proceeding prior to the
judgment or final order, requiring a party or a court, agency or a a
person to refrain from a particular act or acts. It may also require
the performance of a particular act or duty, in which case it shall
be known as a preliminary mandatory injunction. (ROC, Rule 58,
Sec. 1)
ALTERNATIVE DEFINITION: A preliminary injunction is a
provisional remedy, an adjunct to the main case subject to the
latters outcome.
Its sole object is to preserve the status quo ante litem
motam (status before the suit) until the trial court hears fully the
merits of the case.
Its primary purpose is not to correct a wrong already
consummated or to redress an injury already sustained, or to
punish wrongful acts already committed, but to preserve and
protect the rights of the litigant during the pendency of the case.
(Bustamante, et al., v. Hon. Court of Appeals, et al., G.R. No. 126371,
April 17, 2002)
2. What is a mandatory injunction ?
SUGGESTED ANSWER: An order issued by a court
requiring a party or a court, agency or a person to perform a
particular act or acts.
3. What is the nature of a preliminary injunction ?
SUGGESTED ANSWER: A preliminary injunction is an
extraordinary event calculated to preserve or maintain the status
quo of things ante litem and is generally availed of to prevent
actual or threatened acts, until the merits of the case can be
heard. Injunction is accepted as the strong arm of equity or a
transcendent remedy. (Tayag v. Lacson, et al., G.R. No. 134971,
March 25, 2004)
4. What is the status quo sought to be preserved ?
SUGGESTED ANSWER: The status quo sought to be
preserved by a preliminary injunction is the last actual, peaceable
and uncontested situation which precedes a controversy. The
status quo should be existing ante lite motam, or at the time of the
filing of the case. For this reason, a preliminary injunction should
not establish new relations between the parties, but merely
maintain or re-establish the pre-existing relationship between
them. (Bustamante, et al., v. Hon. Court of Appeals, et al., G.R. No.
126371, April 17, 2002)
4. What is the foundation of the jurisdiction to issue
writs of injunction ?
SUGGESTED ANSWER: The foundation of the jurisdiction
to issue writ of injunction rests in
a. the existence of a cause of action and in the
b. probability of irreparable injury,
c. inadequacy of pecuniary compensation and the
d. prevention of the multiplicity of suits.
Where facts are not shown to bring the case within these
conditions, the relief of injunction must be refused. (Tayag v.
Lacson, et al., G.R. No. 134971, March 25, 2004)
5. What must be shown by one who seeks to enjoin
enforcement of a law ?
SUGGESTED ANSWER: To be entitled to a preliminary
injunction to enjoin the enforcement of law assailed to be
unconstitutional, the party must establish that it will suffer
irreparable harm in the absence of injunctive relief and must
demonstrate that it is likely to succeed on the merits, or that there
are sufficiently serious questions gong to the merits and the
balance of hardships tips decidedly in its favor.
In litigations between governmental and private parties,
courts go much further both to give and withhold relief in
furtherance of public interest than they are accustomed to go
when any private members are involved. Before the plaintiff may
be entitled to injunction against future enforcement, he is
burdened to show some substantial hardship. (The Executive
Secretary, et al., v. Court of Appeals, et al., G. R. No. 131719, May 25,
2004)
6. Is on its face invalidity of a law a ground for
injunction ?
SUGGESTED ANSWER: No. The possible
unconstitutionality of a statute, on its face, does not of itself justify
an injunction against good faith attempts to enforce it, unless there
 18
is a showing of bad faith, harassment, or any other unusual d. the court to which the application for preliminary
circumstance that would call for equitable relief. The on its face injunction was made,
invalidation of statutes has been described as manifestly strong e. may issue ex-parte a temporary restraining order
medicine, to be employed sparingly and only as a last resort, f. to be effective only for a period of twenty (20) days
and is generally disfavored. (The Executive Secretary, et al., v. Court from service on the party or person sought to be enjoined
of Appeals, et al., G. R. No. 131719, May 25, 2004) 1) except as herein provided. (ROC, Rule 58, Sec.
st nd
5, 1 par., 2 sentence, as amended by A.M. No. 07-7-12-SC effective
7. Is chilling effect a ground for injunctive writ ? December 27, 2007, numbering and arrangement supplied)
SUGGESTED ANSWER: No. The fear or chilling effect of
the assailed penal provisions of a law on members of a certain 11. What is the 72-hour rule for temporary restraining
organization does not by itself justify prohibiting the State from orders ?
enforcing them against those whom the State believe in good faith SUGGESTED ANSWER:
to be punishable under the laws. However, subject to the provisions of the preceding
It must be borne in mind that subject to constitutional sections,
limitations, Congress is empowered to define what acts or a. if the matter is of extreme urgency and the applicant
omissions shall constitute a crime and to prescribe punishments will suffer grave injustice and irreparable injury,
therefor, The power is inherent in Congress and is part of the b. the executive judge of a multiple-sala court or the
sovereign power to the State to maintain peace and order (The presiding judge of a single-sala court
Executive Secretary, et al., v. Court of Appeals, et al., G. R. No. 131719, c. may issue ex-parte a temporary restraining order
May 25, 2004) effective for only seventy-two (72) hours from issuance,
d. but shall immediately comply with the provisions of
8. Injunctive writ is not for the purpose of taking the next succeeding section as to service of summons and the
property in ones possession and control and place it in the documents to be served therewith. (ROC, Rule 58, Sec. 5, 2nd par.,
st
control of another whose right has not been clearly 1 sentence, as amended by A.M. No. 07-7-12-SC effective December
established. 27, 2007, numbering and arrangement supplied)

9. May a writ of preliminary injunction be issued 12. What is the procedure to be followed after
ex-parte ? Why? issuance of the 72-hour ex-parte TRO ?
SUGGESTED ANSWER: No preliminary injunction shall SUGGESTED ANSWER:
be granted without hearing and prior notice to the party or person a. Thereafter, within the aforesaid seventy-two (72)
sought to be enjoined. (ROC, Rule 58, Sec. 1, 1 par., 1
st st hours, the judge before whom the case is pending
sentence) b. shall conduct a summary hearing to determine
The reason is that the preliminary injunction may cause 1) whether the temporary restraining order
grave and irreparable injury to the person enjoined. shall be extended
2) until the application for preliminary injunction
10. Are there any exceptions to the rule that can be heard.
preliminary injunction may not be granted ex-parte ? c. In no case shall the total period of effectivity of the
SUGGESTED ANSWER: Yes, a temporary restraining temporary restraining order exceed twenty (20) days including the
order may be granted ex-parte. original seventy-two hours provided herein. (ROC, Rule 58, Sec. 5,
nd nd
2 par., 2 sentence, as amended by A.M. No. 07-7-12-SC effective
a. If it shall appear from facts shown by affidavits or by December 27, 2007, numbering and arrangement supplied)
the verified application
b. that great or irreparable injury would result to the 13. What is the effect of denial of the application for
applicant preliminary injunction or the failure to act on the application
c. before the matter can be heard on notice, on the temporary restraining order ?
 19
SUGGESTED ANSWER: a. The trial court, the Court of Appeals, the
a. In the event that the application for preliminary Sandiganbayan or the Court of Tax Appeals
injunction is denied or b. that issued a writ of preliminary injunction against a
1) not resolved within the said period, lower court, board, officer, or quasi-judicial agency
b. the temporary restraining order is deemed c. shall decide the main case or petition within six (6)
automatically vacated. (ROC, Rule 58, Sec. 5, 3rd par., 1
st
months from the issuance of the writ. (ROC, Rule 58, Sec. 5, last
sentence, as amended by A.M. No. 07-7-12-SC effective December 27, par., as amended by A.M. No. 07-7-12-SC effective December 27, 2007,
2007, numbering and arrangement supplied) numbering and arrangement supplied)

14. Is the effectivity of a temporary restraining order 18. May courts issue injunctive writs against the
extendible ? implementation or execution of contracts for the operation of
SUGGESTED ANSWER: No. a public utility ?
a. The effectivity of a temporary restraining order is not SUGGESTED ANSWER: In general, no court, except the
extendible Supreme Court, shall issue any temporary restraining order,
1) without need of any judicial declaration to that preliminary injunction or preliminary mandatory injunction against
effect and the government, or any of its subdivisions, officials or any person
b. no court shall have authority to extend or renew the or entity whether public or private, acting under the governments
same direction, to restrain, prohibit or compel the following acts:
1) on the same ground for which it was issued. a. Acquisition, clearance and development of the right-
rd nd
(ROC, Rule 58, Sec. 5, 3 par., 2 sentence, as amended by of-way and/or site or location of any national government project;
A.M. No. 07-7-12-SC effective December 27, 2007, numbering b. Bidding or awarding of contract/project of the national
and arrangement supplied) government;
c. Commencement, prosecution, execution,
15. What is the effectivity of a temporary restraining implementation, operation of any such contract or project;
order issued by the Court of Appeals ? d. Termination or recission of any such contract/project;
SUGGESTED ANSWER: However, if issued by the Court of and
Appeals, or a member thereof, e. The undertaking or authorization of any other lawful
a. the temporary restraining order shall be effective for activity necessary for such contract/project.
sixty (60) days This prohibition shall apply in all cases, disputes or
b. from service on the party or person sought to be controversies instituted by a private party, including but not limited
enjoined. (ROC, Rule 58, Sec. 5, 4th par., 1st sentence, as amended to cases filed by bidders or those claiming to have rights through
by A.M. No. 07-7-12-SC effective December 27, 2007, numbering and
arrangement supplied)
such bidders involving such contract/project. (Sec. 3, R.A. No. 8975)

16. What is the effectivity of a restraining order
issued by the Supreme Court ?
SUGGESTED ANSWER: A restraining order issued by the
Supreme Court or a member thereof shall be effective until further
orders. (ROC, Rule 58, Sec. 5, 4th par., 2nd sentence, as amended by
A.M. No. 07-7-12-SC effective December 27, 2007, numbering and
arrangement supplied)
17. What is the period for deciding a case or petition
where an injunctive writ was issued ?
SUGGESTED ANSWER:
19. Is there any exception to the rule that no court,
except the Supreme Court, may enjoin government contracts
or projects ?
SUGGESTED ANSWER: Yes. The prohibition shall not
apply when the matter is of extreme urgency involving a
constitutional issue, such that unless a temporary restraining order
is issued, grave injustice and irreparable injury will arise.
The applicant shall file a bond, in an amount to be fixed by
the court, which bond shall accrue in favor of the government if the
court should finally decide that the applicant as not entitled to the
relief sought. (Sec. 3, R.A. No. 8975)
 20
preserving, administering, or disposing of the property in litigation.
20. May the President of the Philippines be (Sec. 1, Rule 59, ROC, numbering supplied)
the subject of an injunctive writ ?
SUGGESTED ANSWER: No, because he is immune from 4. What are the powers of the receiver ?
suit. SUGGESTED ANSWER: Subject to the control of the court
in which the action or proceeding is pending, a receiver shall have
the power
RECEIVERSHIP a. to bring and defend, in such capacity, actions in his
own name;
1. Define a receivership. b. to take and keep possession of the property in
SUGGESTED ANSWER: A receivership is a provisional controversy;
remedy where the court appoints a person, who is independent of c. to receive rents;
the parties, to receive and preserve the property or fund in d. to collect
litigation when it does seem reasonable to the court that either e. to compound
party should hold it. f. to make transfers;
g. to pay outstanding debts
2. Who may appoint a receiver and in what h. generally to do such acts
cases ? However,
SUGGESTED ANSWER: No action may be filed for or against a receiver without
a. The court where the action is pending.. leave of the court which appointed him. (Sec. 6, Rule 59, ROC
b. The Court of Appeals or a member thereof. arrangement and numbering supplied)
c. The Supreme Court or a member thereof. (Sec. 1,
Rule 59, ROC)
. 5. When is the receivership extinguished ?
SUGGESTED ANSWER: A receivership is terminated:
3. In what cases may the appointment of a a. Whenever the court, motu proprio or on motion of
receiver be obtained ? either party
SUGGESTED ANSWER: The grounds for the appointment b. shall determine that the necessity for a receiver no
of a receiver are: longer exists,
a. When the property or fund which is the subject of the c. it shall, after due notice to all interested parties and
action or proceeding xxx is in danger of being lost, removed, or hearing,
materially injured unless a receiver be appointed to administer or d. settle the accounts of the receiver,
preserve it; e. direct the delivery of the funds and other property in
b. When it appears in an action by the mortgagee for his possession to the person adjudged to be entitled to receive
the foreclosure of a mortgage that the property is in danger of them, and
being wasted or dissipated or materially injured, and that its value f. order the discharge of the receiver from further duty
is probably insufficient to discharge the mortgage debt, or that as such. (1st sentence, Sec. 8, ROC arrangement and numbering
the parties have so stipulated in the contract of mortgage; supplied)
c. After judgment, to preserve the property during the
pendency of an appeal, or to dispose of it according to the
judgment, or to aid execution when the execution has been REPLEVIN
returned unsatisfied or the judgment obligor refuses to apply his
property in satisfaction of the judgment, or otherwise to carry out 1. Define replevin.
the judgment into effect; SUGGESTED ANSWER: Replevin or delivery of personal
d. Whenever in other cases it appears that appointment property consists in the delivery, by order of the court, of personal
of a receiver is the most convenient and feasible means of property by the defendant to the plaintiff upon the filing of a bond.
 21
2. When the complaint in an action prays for the
recovery of personal property, how may possession of that
property be obtained before answer ?
SUGGESTED ANSWER: The plaintiff must apply for the
issuance of a writ of replevin.
3. At what stage of the proceedings may an
applicant apply for an order of replevin?
SUGGESTED ANSWER: A person praying for the recovery
or possession of personal property may,
a. at the commencement of the action or
b. or any time before answer, apply for an order for the
delivery of such property to him xxx. (Sec. 1, Rule 60, ROC,
arrangement, numbering and paraphrasing supplied)
4. Differentiate attachment FROM replevin as a
provisional remedy.
SUGGESTED ANSWER:
a. The property sought to be taken in replevin is the
subject-matter of the suit WHILE the property subject of an
attachment may or may not be the property subject of the
litigation.
b. In replevin the property sought to be recovered is
always personal property WHILE in attachment the property that
may be taken may be real or personal property.
c. In replevin the property seized is delivered to the
plaintiff even during the pendency of the action WHILE in
attachment the property remains in custodia legis.
d. In replevin the counterbond to obtain return of the
property is double the value of the property WHILE in attachment
the counterbond is equal to that fixed by the court or equal to the
value of the property.
5. Under what conditions can a writ for delivery of
personal property be issued ?
SUGGESTED ANSWER: The applicant must show by his
own affidavit or that of some other person who personally knows
the facts:
a) That the applicant is the owner of the property
particularly describing it, or is entitled to the possession thereof;
b) That the property is wrongly detained by the adverse
party, alleging the cause of detention thereof according to the best
of his knowledge, information and belief;
c) That the property has not been distrained or taken for
a tax assessment or a fine pursuant to law, or seized under a writ
of execution or preliminary attachment, or otherwise placed under
custodia legis, or if so seized, that it is exempt from such seizure
or custody; and
d) The actual market value of the property.
The applicant must also give a bond, executed to the
adverse party in double the value of the property as stated in the
affidavit aforementioned, for the return of the property to the
adverse party if such return be adjudged, and for the payment to
the adverse party of such sum as he may recover from the
applicant in the action. (Sec. 2, Rule 60, ROC)
6. A sold five thousand piculs of sugar to B,
payable on demand. Upon delivery of the sugar to B,
however, the latter did not pay its purchase price. After the
lapse of some time from the date of delivery of the sugar to B,
A brought an action for the recission of the contract of sale
and as incident of this action, asked for the manual delivery
(replevin) of the sugar to him.
May the remedy of replevin prayed for by A be granted
? Explain.
SUGGESTED ANSWER: No. When A sold the sugar B,
ownership already vested upon the latter. Thus, until the
ownership reverts back to him when the contract is rescinded, it is
B who owns the sugar. Only an owner may seek the recovery of
personal property through replevin.
7. What is the duty of the sheriff in replevin ?
SUGGESTED ANSWER: Upon receiving the court order
and the corresponding writ of replevin
a. the sheriff must serve a copy thereof on the adverse
party,
1) together with a copy of the application, affidavit
and bond and
2) must forthwith take the property,
a) if it be in the possession of the adverse
party, or his agent, and
b) retain it in his custody.
b. If the property or any part thereof be concealed in a
building or enclosure,
1) the sheriff must demand its delivery, and
2) if it be not delivered,
 22
a) he must cause the building or enclosure replevin is still in the sheriffs possession but not when the
to be broken open property is already in the plaintiffs possession.
b) and take the property into his
possession. 10. May replevin lie if the property is already
c. After the sheriff has taken possession of the property sold ? Explain your answer.
as herein provided, SUGGESTED ANSWER: No. Replevin may not be availed
1) he must keep it in a secure place and of if the property sought to be delivered is already sold even if not
2) shall be responsible for its delivery to the yet paid. REASON: Ownership has already been transferred so
person entitled thereto the seller could not subject the same to replevin.
a) upon receiving his fees and necessary
expenses for taking and keeping the same. (Sec. 4,
Rule 60 arrangement and numbering supplied)
SUPPORT PENDENTE LITE

8. What are the requisites to obtain the return 1. At what stage of the proceedings may an application
of the properties subject to replevin ? for support pendente lite be filed ?
SUGGESTED ANSWER: SUGGESTED ANSWER:
a. If the adverse party objects to a. At the commencement of the proper action or
1) the sufficiency of the applicants bond or of proceeding, or
2) the surety or sureties thereon, b. at any time prior to the judgment or final order . (Sec.
1, Rule 61, ROC)
3) he cannot immediately require the return of the
property, but
b. if he does not so object,
2. Is support pendente lite available in
1) he may at any time before the delivery of the criminal cases ?
SUGGESTED ANSWER: Yes. Support pendente lite may
property to the applicant,
2) require the return thereof, be granted in criminal actions, such as rape, where the civil liability
3) by filing with the court where the action is includes support of the offspring as a consequence, provided that
pending the civil aspect has not been waived, reserved or instituted for
a) a bond executed to the applicant, filing in a separate civil action, prior to the filing of the criminal
b) in double the value of the property information. (Sec. 6, Rule 61, ROC)
c) as stated in the applicants affidavit for
3. Who may file the application for support
the delivery thereof to the applicant,
d) if such delivery be adjudged, and pendente lite in criminal cases.
e) for the payment of such sum to him as SUGGESTED ANSWER: The application therefor may be
may be recovered against the adverse party, and filed successively by the offended party, her parents, grandparents
4) by serving a copy of such bond on the or guardian and the State in the corresponding criminal case
applicant. (Sec. 5, Rule 60, ROC arrangement and numbering during its pendency, in accordance with the procedure established
supplied) under Rule 61. (Sec. 6, Rule 61, ROC words not in bold supplied)

9. Can a third-party claim be filed to recover a WHO ARE THE PARTIES ?

car in the possession already of the plaintiff by virtue of a writ
of replevin ? 1. What is meant by parties ?
SUGGESTED ANSWER: No. A third-party claim is SUGGESTED ANSWER: Parties when used in connection
available only as a remedy while the property subject of the writ of with the subject matter of an action, is understood to include all
those
 23
a. who are directly interested in the subject matter, and b. if a foreign corporation is not doing business in the
b. who, therefore, have a right Philippines, it needs no license to sue before Philippine courts on
1) to make a defense, an isolated transaction or on a cause of action entirely
2) control the proceedings, independent of any business transaction.
3) examine and cross-examine the witnesses, or If a foreign corporation does business in the Philippines, it
appeal from the judgment. can sue before Philippine courts on any transaction.
Persons not having these rights are regarded as strangers Apparently, it is not the absence of the prescribed license
to the action. (47 C.J. 14-15, numbering and arrangement supplied) but the doing (of) business in the Philippines which debars the
foreign corporation from access to our courts. (MR Holdings, Ltd. V.
2. Who may be parties to a suit ? Sheriff Bajar, et al., G.R. No. 138104, April 11, 1002)
SUGGESTED ANSWER:
a. Only CRITERIA FOR INVOKING JUDICIAL
1) natural or
2) juridical persons or PROCESS
3) entities authorized by law
b. may be parties in a civil action. (1st sentence, Sec. 1, 1. How are parties classified ?
Rule 3, ROC arrangement and numbering supplied) SUGGESTED ANSWER: Parties may be classified as:
a. Plaintiffs and defendants.
3. May a dead person or his estate be a party in a b. Indispensable parties, necessary parties, proper
court action ? Reason out your answer. parties, and formal parties.
SUGGESTED ANSWER: No. A deceased person does not
have such legal entity as is necessary to bring action so much so 2. Who may be joined as parties plaintiff ?
that a motion to substitute cannot lie and should be denied by the SUGGESTED ANSWER: All persons in whom any right to
court. relief in respect to or arising out of the same transaction or series
An action begun by a decedents estate cannot be said to of transactions is alleged to exist, whether jointly, severally, or in
have been begun by a legal person, since an estate is not a legal the alternative may except as otherwise be provided in the Rules
entity; such an action is a nullity and a motion to amend the party of Court, may join as plaintiffs, in one complaint, where any
plaintiff will not likewise lie. There is nothing to amend. question of law or fact common to all such plaintiffs may arise in
Considering that capacity to be sued is a correlative of the the action.
capacity to sue, to the same extent, a decedent does not have the The term plaintiff may refer to the claiming party, the
capacity to be sued and may be named a party defendant in a counter-claimant, the cross-claimant, or the third (fourth, etc.) -
court action. party plaintiff. (2nd sentence, Sec. 1, Rule 3, ROC)
The proper action should be in the form of a claim to be filed
in the testate or intestate estate proceedings of the deceased 3. Who may be joined as parties defendants ?
spouse. (Ventura v. Hon. Militante, et al., G.R. No. 631145, SUGGESTED ANSWER: All persons against whom any
October 5, 1999) right to relief in respect to or arising out of the same transaction or
series of transactions is alleged to exist, whether jointly, severally,
4. Summarize the principles governing a or in the alternative may except as otherwise be provided in the
foreign corporations right to sue in local courts. Rules of Court, may be joined as defendants, in one complaint,
SUGGESTED ANSWER: where any question of law or fact common to all such defendants
a. If a foreign corporation does business in the may arise in the action.
Philippines without a license, it cannot sue before Philippine The term defendant may refer to the original defending
courts. party, the defendant in the counterclaim, the cross-defendant, or
 24
the third(fourth, etc.) - party defendant. (3rd sentence, Sec. 1, Rule 3, the court dismissed the case against D. B and C moved to
ROC) dismiss the case against them on the ground that, being
indispensable parties under a common cause of action, non-
4. Under the Rules of Court who are inclusion of D would not make the case prosper.
indispensable parties ? Are the defendants indispensable parties ? How would
SUGGESTED ANSWER: An indispensable party is a party you resolve the motion ?
in interest without whom no final determination can be had of an SUGGESTED ANSWER: No. The motion should be
action. (Sec. 7, Rule 3, ROC) They shall always be joined either as denied. The insurer of the vehicle is not an indispensable party
plaintiffs or defendants. (Ibid.) In short, there is compulsory because his liability arises from contract while that of the driver
joinder of indispensable parties. and the owner, from a quasi-delict. (Inson v. Court of Appeals, et al.,
239 SCRA 58)
5. Give an example of an indispensable party.
SUGGESTED ANSWER: A co-owner of a property that is 9. Under the present Rules of Court, who
the subject of an action for partition is an indispensable party. are necessary parties ?
(Araneta v. Montelibano, 14 Phil. 17) SUGGESTED ANSWER: A necessary party is
a. One who is not indispensable
5-A. Does the mandatory requirement on impleading b. but who ought to be joined as a party
all indispensable parties apply to appeals ? Why ? c. if complete relief is to be accorded
SUGGESTED ANSWER: No. The mandatory requirement d. to those already parties,
of impleading all indispensable parties applies only to the filing of e. for a complete determination or settlement of the
an original action, but not to an appeal, since it is the partys claim subject of the action. (Sec. 8, Rule 3, ROC, arrangement and
choice whether to appeal or not, and he or she cannot be numbering supplied)
compelled to do so. (Dadizon, et al., v. Bernadas, etc., G. R. No.
172367, June 5, 2009) 10. Give examples of necessary party.
SUGGESTED ANSWER:
6. Who is a nominal or pro forma party? a. A solidary debtor is not an indispensable party but
SUGGESTED ANSWER: A nominal or pro forma party is merely a necessary party. The creditor can proceed separately
one who is joined as a plaintiff or defendant, not because such against any of the solidary debtors, who then can proceed against
party has any real interest in the subject matter or because any his co-debtors for reimbursement if complete relief is to be
relief is demanded, but merely because the technical rules of obtained.
pleadings require the presence of such party on the record. b. In an action to recover possession of a parcel of land,
the possessor (tenant, etc.), is the indispensable party while the
7. What requisites must be present for the owner is merely the necessary party.
joinder of an indispensable party ? c. In an action for the recovery of the ownership of a
SUGGESTED ANSWER: The party parcel of land, the owner is the indispensable party and the
a. must be a party in interest, and possessor (the tenant) is merely the necessary party.
b. no final determination can be had of the action
without such party. (Sec. 7, Rule 3, ROC) 11. Distinguish one from the other:
indispensable party and necessary party.
8. A filed an action against B, driver of the truck, SUGGESTED ANSWER: The following are the distinctions
C, owner of said truck, and D, insurer of the truck, for between indispensable parties and necessary parties:
damages when the truck rammed his car. A and D entered a. The interest of indispensable parties is such that no
into a compromise agreement upon an amount loser than that final determination of the action can be had without them WHILE
sued upon by A against all three defendants. Accordingly,

the interest of necessary parties is such that complete relief may
not be had without them.
b. Non-joinder of an indispensable party may subject
the suit to dismissal WHILE such is not the case with non-joinder
of a necessary party.
12. Distinguish necessary party FROM proper
party.
SUGGESTED ANSWER: A necessary party is
distinguished from a proper party in the following manner:
a. A necessary party has an interest so joined with the
parties before the court that his joinder is required if complete is to
be accorded the parties WHILE the interest of a proper property is
separable and even without his joinder complete relief can be had
between the parties in court;
b. Necessary parties may at the discretion of the court
be summoned to appear so complete relief may be accorded the
parties WHILE proper parties need not be summoned to accord
complete relief to parties.
13. Who is a real party in interest ?
SUGGESTED ANSWER: A real party in interest is
a. the party who stands to be benefited or
1) injured by the judgment in the suit, or
b. the party entitled to the avails of the suit.
sentence, Sec. 2, Rule 3, ROC, arrangement and numbering supplied)
14. What is the importance of knowing who is the
real party in interest ?
SUGGESTED ANSWER:
a. Unless otherwise authorized by
1) law or
2) these Rules of Court,
b. every action must be prosecuted or defended
1) in the name of the real party in interest.
nd
(2 sentence, Sec. 2, Rule 3, ROC, arrangement, numbering and
words not in bold supplied)
15. What is the reason why suits must be brought in
the name of the real party in interest ?
SUGGESTED ANSWER: Suits must be brought in the
name of the real party in interest In order to end litigations. If the
suit is not brought in the name of the real party in interest, no
controversy would be resolved because another suit could always
be instituted for or against the "true" real party in interest.
25
As the Latin maxim goes, interest rei publicae ut finis sit
litium. The interest of the State demands end to litigation.
16. A is the owner of a parcel of land leased to B for
a period of two years which expired on January 15, 2006.
Notwithstanding the expiration of the period, B refused to
deliver possession thereof to A. because of the old age and
infirmity of A, she executed a power of attorney in favor of C
authorizing the latter to take lawful steps to recover
possession. C, thru counsel, brought an action in court in his
name as attorney-in-fact of A against B. After the receipt of
the summons the lawyer for presented a motion for dismissal
of the complaint on the ground that the action was not
brought in the name of the real party in interest. If you were
the judge, how would you decide the motion for dismissal ?
SUGGESTED ANSWER: I would grant the motion.
An attorney-in-fact is not a real party in interest. He could
not bring an action in his name because he does not stand to be
benefited or prejudiced by the avails of the suit.
He should sue in the name of his principal the real party in
interest.
17. What is meant by locus standi ? Exemplify.
SUGGESTED ANSWER: Locus standi or legal personality
st
(1 is a personal and substantial interest in the case such that the
party has sustained or will sustain direct injury as a result of the
governmental act that is being challenged. The gist of the
question of standing is whether a party alleges such personal
stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon
which the court depends for illumination of difficult constitutional
questions. (Sanlakas, etc., v. Executive Secretary, etc., et al., G.R. No.
159085, and companion cases, February 3, 1004; The Province of
Batangas, et al., v. Romulo, etc., et al., G. R. No. 152774, May 27, 2004)
Thus, a party list-organization, such as Sanlakas does not
have locus standi to question the validity of a Presidential
Proclamation and General Order both declaring a state of
rebellion and calling out the Armed Forces to suppress the
rebellion. (Sanlakas, supra)
Citing the case of Lacson v. Perez, where the Laban ng
Demokratikong Pilipino was ruled to be without standing because
it has not demonstrated any injury to itself as it is a juridical person
not subject to arrest hence it cannot claim to be threatened by a
warrantless arrest. Nor was it alleged that its leaders, members,
 26
and supporters are being threatened with warrantless arrest and
detention for the crime of rebellion. Every action must be brought
in the name of the party whose legal rights has been invaded or
infringed, or whose legal right is under imminent threat of invasion
of infringement. (Ibid.)
18. What is the concept of substantial interest
within the context of locus standi ? Give an example.
SUGGESTED ANSWER: The term interest means
material interest, an interest in issue to be affected by the decree,
or judgment (Bocaling, et al., v. Muya, et al., G.R. No. 148404-05, April
11, 2002), as distinguished from mere interest in the question
involved, or a mere incidental interest. Moreover, the interest of
the party must be personal and not one based on a desire to
vindicate the constitutional right of some third or unrelated party.
(Spouses Tankiko, et al., v. Cezar, et al., G.R. No. 131277, February 2,
1999)
19. Give examples of interest which is an element of
locus standi.
SUGGESTED ANSWER:
a. The fact that petitioners are neighboring lot owners
whose access to public roads will allegedly be affected by the
fencing of the subject lots, merely gives them an incidental interest
over the questioned order of the probate court and cannot serve
as basis to support their legal standing to elevate the order of the
probate court to the Court of Appeals and before this Court. In this
regard, it is worth mentioning that the only person who can
rightfully oppose the issuance of the fencing permit is the City
Engineer of Caloocan. (Tang, et al., v. Court of Appeals, et al., G.R.
No. 117204, February 11, 2000)
b. The Government of the Republic of the Philippines
cannot file suit for the cancellation of a TCT, where the alleged
owner of the areas covered by the TCT is not itself but the Bases
Conversion and Development Authority. The Republic does not
stand to be benefited by the cancellation. (Shipside Incorporated
v. Court of Appeals, G.R. No. 143377, Feb. 20, 2001)
c. Public officials have locus standi because it is their
sworn duty to protect public interest. (Maceda v. Macaraig, 197
SCRA 771)
Members of Congress have standing to question a
Presidential declaration of a state of rebellion because that is
tantamount to an exercise of Congress emergency powers thus
impairing the lawmakers legislative powers. Reason: To the
extent the powers of Congress are impaired, so is the power of
each member thereof, since his office confers a right to participate
in the exercise of the powers of that institution.
An act of the Executive which injures the institution of
Congress causes a derivative but nonetheless substantial injury,
which can be questioned by a member of Congress. In such a
case, any member of Congress can have a resort to the courts.
(Sanlakas, etc., v. Executive Secretary, etc., et al., G.R. No.
159085, and companion cases, February 3, 1004 citing Philippine
Constitutional Association v. Enriquez)
d. That SJS officer/members are Filipino citizens,
taxpayers, law professors and bar reviewers does not
necessarily endow them with standing to question the validity of a
Presidential Proclamation and General Order both declaring a
state of rebellion and calling out the Armed Forces to suppress
the rebellion because a taxpayer may bring suit where the act
complained of directly involves the illegal disbursement of public
funds derived from taxation.
A citizen will be allowed to raise a constitutional question
only when he can show that he has personally suffered some
actual or threatened injury as a result of the allegedly illegal
conduct of the government; the injury is fairly traceable to the
challenged action, and the injury is likely to be redressed by a
favorable action. (Sanlakas, etc., v. Executive Secretary, etc., et
al., G.R. No. 159085, and companion cases, February 3, 1004)
e. The interest of a party assailing the constitutionality
of a statute must be direct and personal. Such party must be able
to show, not only that the law or any government act is invalid, but
also that he has sustained or is in imminent danger of sustaining
some direct injury as a result of its enforcement, and not merely
that he suffers thereby in some indefinite way. It must appear that
the person complaining has been or is about to be denied some
right or privilege to which he is lawfully entitled or that he is about
to be subjected to some burdens or penalties by reason of the
statute or act complained of. (The Province of Batangas, et al., v.
Romulo, etc., et al., G. R. No. 152774, May 27, 2004)
Thus, an LGU has standing to impugn the constitutionality
of a statute fixing the amount of IRA to which they should be
entitled to. (Ibid.)
20. When may taxpayers have locus standi to
impugn the validity of a law ?
SUGGESTED ANSWER: A citizen acquires standing only if
he can establish that he has suffered some actual or threatened
injury as a result of the allegedly illegal conduct of the government;
 27
the injury is fairly traceable to the challenged action; and the injury
is likely to be redressed by a favorable action.
A taxpayer is deemed to have the standing to raise a
constitutional issue when it is established that public funds have
been disbursed in alleged contravention of the law or the
constitution. Thus, a taxpayers action is properly brought only
when there is an exercise by congress of its taxing and spending
power. (Gonzales v. Hon. Narvasa, etc., et al., G.R. No. 140835, August
14, 2000)
Taxpayers have locus standi to question the validity of tax
measures or illegal expenditures of public money.
REASON: They are parties in interest to be prejudiced or
benefited by the avails of the suit, but not if executive acts do not
involve the use of public funds. (Gonzales v. Marcos, 65 SCRA 624)
A taxpayers action is properly brought only when there is
an exercise by Congress of its taxing or spending power. There
must be appropriation by Congress so to speak to clothe a
taxpayer with standing. Appropriation in its strict sense, is the
legislative authorization prescribed by the Constitution that money
may be paid out of the Treasury, while appropriation made by
law refers to the act of the legislature setting apart or assigning
to a particular use a certain sum to be used in payment of debt or
dues from the State to its creditors.
There is no such exercise in a case questioning
disbursements made by the Office of the President in order to
determine the need for constitutional amendments because the
funds were taken from funds intended for the Office of the
President, in the exercise of the Chief Executives power to
transfer funds pursuant to Section 25 (5) of Article VI of the
Constitution. (Gonzales v. Hon. Narvasa, etc., et al., G.R No. 140835,
August 14, 2000)
21. An NGO challenges the validity of an
expenditure of a government agency. It was shown that it
does not have locus standi. May the suit be dismissed on
this basis ?
SUGGESTED ANSWER: No. Objections to taxpayer's
suits for lack of sufficient personality is a procedural technicality
which the Supreme Court could brush aside, where the issues are
of such transcendental importance in keeping with the Court's
duty, under the 1987 Constitution and the laws, to determine
whether public officers have abused the discretion given to them.
(Kilosbayan, Inc. v. Guingona, Jr., 232 SCRA 110)
Ordinary citizens and taxpayers were allowed to question
the constitutionality of several executive orders issued by
President Quirino although they were involving on an indirect and
general interest shared in common with the public. The Supreme
Court dismissed the objection that they were not proper parties
and ruled that, transcendental importance to the public of these
cases demands that they be settled promptly and definitely,
brushing aside, if we must, technicalities of procedure. (Lim v.
Executive Secretary, etc., et al., G.R. No. 151445, April 11, 2002 citing
Emergency Powers cases)
22. What are the requisites of transcendental
importance in order to except from the concept of locus
standi ?
SUGGESTED ANSWER: The Supreme Court, through
Associate Justice Florentino P. Feliciano (now retired), provided
the following instructive guides as determinants in determining
whether a matter is of transcendental importance: (1) the
character of the funds or other assets involved in the case; (2) the
presence of a clear case of disregard of a constitutional or
statutory prohibition by the public respondent agency or
instrumentality of the government; and (3) the lack of any other
party with a more direct and specific interest in the questions being
raised. [Chamber of Real Estate and Builders Association, Inc.(CREBA)
v. Energy Regulatory Commission (ERC), G. R. No. 174607, July 8, 2010
citing Manggagawang Pilipino, Inc., G.R. No. 160261, November 10,
2003, 415 SCRA 44, 139, citing Kilosbayan v. Guingona, G.R. No.
113375, May 5, 1994, 232 SCRA 110, 155-157]
23. What are the requisites for permissive
joinder of parties ?
SUGGESTED ANSWER:
a. All persons in whom or against any right to relief
b. in respect to or arising out of the same transaction or
series of transactions is alleged to exist,
1) whether jointly, severally, or in the alternative,
c. may except as otherwise provided in these Rules of
Court
d. join as plaintiffs or be joined as defendants in one
complaint,
e. where any question of law or fact common to all such
plaintiffs or to all such defendants may arise in he action;
f. but the court may make such orders as may be just
to prevent any plaintiff or defendant from being embarrassed or
put to expense in connection with any proceeding in which he may
have no interest. (Sec. 6, Rule 3, ROC arrangement, numbering and
words without emphasized supplied)
 28
a. Whenever in any pleading in which a claim is
24. P sued A and B in one complaint in the asserted
RTC-Manila, the cause of action against A being an overdue b. a necessary party is not joined,
promissory note for P500,000.00 and that against B being an c. the pleader shall
alleged balance of P300,000.00 on the purchase price of 1) set forth his name, if known, and shall state
goods sold on credit. Does the RTC-Manila have jurisdiction 2) why he is omitted.
over the case ? Explain. d. Should the court find the reason for the omission
SUGGESTED ANSWER: No, the RTC-Manila has no unmeritorious, it
jurisdiction over the case. 1) may order the inclusion of the omitted
A and B could not be joined as defendants in one complaint necessary party
because the right to relief against both defendants did not arise 2) if jurisdiction over his person may be obtained.
st
out of the same transaction or series of transactions, whether (1 par., Sec. 9, Rule 3, ROC arrangement and numbering
jointly, severally or in the alternative, and there is no common supplied)
question of law or fact common to all such defendants that may
arise in the action. (Sec. 6, Rule 3, ROC) 4. What is the effect of failure of the pleader to
comply with an order of the court to include a necessary
party whose name was omitted ?
MISJOINDER AND NON-JOINDER OF SUGGESTED ANSWER: The failure to comply with the
PARTIES order for his (necessary party) inclusion, without justifiable cause,
shall be deemed a waiver of the claim against such party. (2nd par.,
1. Is misjoinder a good ground for a dismissal Sec. 9, Rule 3, ROC, words in parentheses supplied)
?
SUGGESTED ANSWER: Neither misjoinder nor nonjoinder 5. What are the effects of non-inclusion in the
of parties is ground for dismissal of an action. (1st sentence, Sec. suit of a necessary party ?
11, Rule 3, ROC) SUGGESTED ANSWER: The non-inclusion of a necessary
party
2. What should be done when parties are not joined does not prevent the court from proceeding in the action,
or are misjoined ? and
SUGGESTED ANSWER: the judgment rendered therein shall be without prejudice to
a. Parties may be dropped or added the rights of the necessary party. (last par., Sec. 9, Rule 3, ROC,
1) by order of the court arrangement and numbering supplied)
a) on motion of any party or
b) on its own initiative 6. May the court proceed without indispensable
2) at any stage of the action and parties joined in an action ? Reason out your answer.
a) on such terms as are just. SUGGESTED ANSWER: No. There is compulsory joinder
b) Any claim against a misjoined party of indispensable parties.
1) may be severed and The failure to include indispensable parties results to
2) proceeded with separately. (2nd sentence, Sec. dismissal of the action. Parties in interest without whom no final
11, Rule 3, ROC, arrangement and numbering supplied) determination can be had of an action shall be joined either as
plaintiffs or defendants. (Sec. 7, Rule 3, ROC)
3. What should a pleader do when there is non- REASON: Their presence is a sine qua non to the exercise
joinder of necessary parties and how should the court act on of judicial power (Borlasa v. Polistico, 47 Phil. 345). So that the whole
the matter ? matter in dispute may be determined once and for all in the
SUGGESTED ANSWER: litigation preventing multiplicity of suits. (Palarca v. Boguisi, 38 Phil.
177)
 29
2) with juridical personality
7. Since non-joinder is not a ground for dismissal 3) enter into a transaction,
what is the procedure for dismissal if an indispensable party b. they may be sued
is not impleaded ? 1) under the name
SUGGESTED ANSWER: 2) by which they are generally or commonly
a. A motion should be filed for the inclusion of the known.
indispensable party. and not a motion to dismiss. c. In the answer of such defendant,
b. The court then orders the inclusion of the indispensable 1) the names and addresses of the persons
party or opportunity afforded for amendment by the pleader. 2) composing said entity
c. If the plaintiff to whom the order to include the 3) must all be revealed. (Sec. 15, Rule 3, ROC,
indispensable party is directed refuses to comply with the order of arrangement and numbering supplied)
the court, the complaint may be dismissed upon motion of the
defendant or upon the court's own motion. (Sec. 3, Rule 17, ROC; 2. A wants to bring a court action against
Dael v. Teves, 136 SCRA 196) three persons who are associated and transacting business
d. Only upon unjustified failure or refusal to obey the under the common name Santos brothers. To recover the
order to include or to amendment is the action dismissed. (Cortez sum of P100,000.00 which the association owed him. His
v. Avila, G.R. No. L-9782, April 26, 1957) investigation disclosed that the association has not acquired
a separate juridical personality, but he had no means of
SPOUSES AS PARTIES determining the identity of the three (3) associates. How
must A sue the three (3) associates ? Reason out briefly your
1. "A" husband of "B," instituted an action for answer.
ejectment in the Regional Trial Court of the National Capital SUGGESTED ANSWER: A must sue the three (3)
Judicial Region in his name against "C" to recover the associates under the common name Santos Brothers. This is so
ownership and possession of a parcel of land which was the because they are not organized as a juridical entity, hence they
paraphernal property of "B." "C" filed a motion asking that must be sued in the name by which they are generally or
"B" be made a party in the action. The court denied "C's" commonly known, in this case Santos Brothers.
motion and proceeded with the trial of the case. Is the court's
ruling sustainable ? State the reasons for your answer. INDIGENT PARTY LITIGANT
SUGGESTED ANSWER: No. Spouses shall sue and be
sued jointly except only in the cases provided by law. There is no 1. Who is an indigent party litigant ?
showing in the problem that there is a judicial separation of SUGGESTED ANSWER: An indigent party litigant is one
property, or that there was a separation of property agreed upon in who has no money or property sufficient and available for food,
the marriage settlements or that the husband has been appointed clothing, shelter and basic necessities for himself and his family.
by a court as the administrator of the wife's property. (Sec. 21, Rule 3, ROC)

ENTITY WITHOUT JURIDICAL PERSONALITY 2. What are the benefits of being an indigent party
litigant ?
SUGGESTED ANSWER: A party may be authorized to
1. How may members of an entity without
litigate his action, claim or defense as an indigent if the court, upon
juridical personality be sued and how may the suit be
an ex parte application and hearing, is satisfied that the party is
answered ?
one who has no money or property sufficient and available for
SUGGESTED ANSWER:
food, shelter and basic necessities for himself and his family.
a. When two or more persons
Such authority shall include an exemption from the payment
1) not organized as an entity
of
 30
a. docket and other lawful fees, and of SPECIAL JOINDER DEVICES. There are three
b. transcript of stenographic notes
special joinder devices whereby parties may be joined in an
1) which the court may order to be furnished him.
action. These are
The amount of the docket and other lawful fees which the
a. class suits,
indigent was exempted from paying shall be lien on any judgment
b. intervention and
rendered in the case favorable to the indigent, unless the court
c. interpleader.
otherwise provides. (Sec. 21, Rule 3, ROC, arrangement and
Class suits and interpleader may be considered as part of the
numbering supplied)
initiatory joinder devices because the parties are joined at the
inception of the suit. They may likewise be considered involuntary
THIRD PARTY COMPLAINT joinder devices because the parties joined may or may not know
that they are being joined.
1. What is a third party complaint ? What is its On the other hand intervention is a joinder device after the suit
nature ? Explain. has been filed and is voluntary in character because a party asks
SUGGESTED ANSWER: A third (fourth, etc.) - party for leave of court to be allowed to intervene.
complaint is a claim that a defending party may, with leave of
court, file against a person not a party to the action, called the third
CLASS SUIT
(fourth, etc.) -party defendant, for contribution, indemnity,
subrogation, or any other relief, in respect of his opponent's claim.
(Sec. 11, Rule 6, ROC) 1. What do you understand by a class suit ?
SUGGESTED ANSWER: An action brought on behalf of, or
2. What is the nature of a third-party complaint ? occasionally against, a class of persons having a common interest
SUGGESTED ANSWER: The third-party complaint is but too numerous to be conveniently joined as individual persons
actually independent of and separate and distinct from the in the case.
plaintiff's complaint. Were it not for this provision of the Rules of
Court, it would have been filed independently and separately from 2. What are the requisites for filing a class suit ?
the original complaint by the defendant against the third-party. SUGGESTED ANSWER:
But the Rules permit the defendant to bring in a third-party a. When the subject matter of the controversy
defendant or so to speak, to litigate his separate cause of action in b. is one of common or general interest to many
respect of plaintiff's claim against a third-party in the original and persons
principal case. (British Airways v. Court of Appeals, et al., G.R. No. c. so numerous that it is impracticable to join all as
121824, January 29, 1998) parties,
d. a number of them which the court finds to
3. What is the purpose of a third party complaint ? 1) be sufficiently numerous and
SUGGESTED ANSWER: 2) representative as to fully protect the interests
a. To avoid circuitry of action and unnecessary of all concerned
proliferation of law suits; e. may sue or defend for the benefit of all.
b. To prevent multiplicity of suits by disposing of f. A party in interest shall have the right to intervene to
expeditiously in one litigation the entire subject matter arising from protect his individual interest. (Sec. 12, Rule 3, ROC arrangement and
one particular set of facts. (British Airways v. Court of Appeals, et al., numbering supplied)
G.R. No. 121824, January 29, 1998) A class suit may be to "sue or defend." So also, the
In short, the main purpose is to achieve complete justice representatives must be more than one person because of the
between all parties. phrase, "a number of them"
 31
3. What are the characteristics of a class suit
?
SUGGESTED ANSWER:
a. There is only one right or cause of action pertaining
or belonging in common to many persons, not separately or
severally to distinct individuals.
b. The object of the suit is to obtain relief for or entity,
and not as separate, distinct individuals whose rights or liabilities
are separate from and independent of those affecting the others.
b. The numerousness of parties involved that it is
impracticable to join all as parties. (Liana's Supermarket v. NLRC, et
al., G.R. No. 111014, May 31, 1996)
4. Four hundred residents of Barrio Ramos
initiated a class action suit through Albert, a former mayor of
the town, to recover damages sustained due to their exposure
to toxic waste and fumes emitted by the cooking gas plant of
Top Fuel Gas Corporation located in the town.
Is the class suit proper ?
SUGGESTED ANSWER: No, the class suit is not proper.
There is no cause of action belonging in common to the 400
residents.
The extent of damage suffered by them is individual and
separate from each other.
The numerousness of the parties and object of the suit a
single entity are not the only determinants of a class suit. There
must be unity of cause or right of action. The 400 residents did
not suffer to the same extent and degree, consequently there have
different causes of action.
Furthermore, Albert is only one and not a number which is
sufficiently representative of the 400 residents.
5. A labor union brought suit involving a
matter of common or general interest in behalf of its members
who are so numerous that it is impracticable to bring all of
them before the court. Is this a class suit ?
SUGGESTED ANSWER: No. This is a suit brought in a
representative capacity by the class suit. It is the function of a
labor union to carry out the representation of its members and to
file an actual suit for their benefit and behalf without joining them
and avoid the cumbersome procedure of joining each and every
member as a separate party. (Liana's Supermarket v. NLRC, et al.,
G.R. No. 111014, May 31, 1996)
INTERVENTION
1. Define intervention.
SUGGESTED ANSWER: Intervention is a procedure
whereby one not originally a party to a suit may, upon court
authority before rendition of judgment by the trial court, join either
as a party plaintiff or party defendant.
NOTES AND COMMENTS:
a. Alternative definition. Intervention is a remedy by
which a third party, not originally impleaded in the proceedings,
becomes a litigant therein, to enable him, her or it to protect or
preserve a right or interest which may be affected by such
proceeding. (Asias Emerging Dragon Corporation v. Department of
Transportation and Communication, et al., G. R. No. 169914, March 24,
2008 and companion case)
b. Nature of intervention. The right to intervene is not
an absolute right. It may only be permitted by the courts when the
movant establishes facts which satisfy the requirements of the law
authorizing it. (Asias Emerging Dragon Corporation v. Department of
Transportation and Communication, et al., G. R. No. 169914, March 24,
2008)
2. May a party-in-intervention be considered a
principal in a prior case for purposes of applying the principle
of res judicata ? Why ?
SUGGESTED ANSWER: No. To consider a party-in-
intervention as a principal in a prior case for purposes of applying
the principle of res judicata goes against the true imjport of the
action of intervention as a mere subsidiary proceeding without an
independent life apart from the principal action as well as the
intrinsic character of the intervenor as a mere subordinate party in
the main case whose right may be said to be only in aid of the
right of the original party. [Islamic Directorate of the Philippines v.
Court of Appeals, 272 SCRA 454 (1997)]
3. What are the requisites for an intervention
by a non-party in an action pending in court.
SUGGESTED ANSWER:
a. The applicant has a legal interest
1) in the matter in litigation, or
2) in the success of either of the parties, or
3) against both of the parties, or
 32
b. The applicant is so situated as to be adversely 2) a distribution of property or
affected by a distribution or other disposition of property in the 3) other disposition of property
custody of the court or of an officer thereof. 4) in the custody of the court or of an officer thereof.
c. The intervention will not unduly delay or prejudice the (Sec. 1, Rule 19, ROC arrangement and numbering supplied)
adjudication of the rights of the original parties.
d. The intervenors rights may not be fully protected in a 6. What degree of interest is required for
separate proceeding. (Sec. 1, Rule 19, ROC, arrangement and intervention ?
numbering supplied) SUGGESTED ANSWER: The interest contemplated by law
NOTES AND COMMENTS: must be actual, substantial, material, direct and immediate, and
a. Outline of the requisites for intervention of a non- not simply contingent or expectant.
party: It must be of such direct and immediate character that the
1. Legal interest intervenor will either gain or lose by the direct legal operation and
(a) in the matter in controversy; or legal effect of the judgment. [Asias Emerging Dragon Corporation v.
(b) in the success of either of the parties; or Department of Transportation and Communication, et al., G. R. No.
(c) against both parties; or 169914, March 24, 2008 and companion case citing Alfelor v.
(d) person is so situated as to be adversely Halasan, G. R. No. 165987, 31 March 2006, 486 SCRA 451, 461, in turn
affected by a distribution or other disposition of citing Nordic Asia Ltd. v. Court of Appeals, 451 Phil. 482, 492-493; 403
SCRA 390, 398 (2003)]
property in the custody the court or an officer thereof;
NOTES AND COMMENTS:
2. Intervention will not unduly delay or prejudice
a. Nature of interest that does not allow
the adjudication of rights of original parties;
intervention. An interest that is indirect, contingent, remote,
3. Intervenors rights may not be fully protected in
conjectural, consequential and collateral. [Asias Emerging Dragon
a separate proceeding. [Asias Emerging Dragon Corporation v. Department of Transportation and Communication, et al.,
Corporation v. Department of Transportation and
G. R. No. 169914, March 24, 2008 and companion case citing
Communication, et al., G. R. No. 169914, March 24, 2008
Magsaysay-Labrador v. CA, G.R. No. 58168, 19 December 1989, 180
and companion case citing Ortega v. Court of Appeals, 359
SCRA 266)
Phil. 126, 139; 298 SCRA 597, 608 (1998) citing the 1997
b. A stockholder is not allowed to intervene in suit
Rules of Civil Procedure by Feria, pp. 71-72]
involving a corporation merely because it is a stockholder.
4. May a party be compelled to intervene ? Reason: The stockholders interest, if any, is indirect, contingent
SUGGESTED ANSWER: No. Intervention is permissive. and inchoate, The corporation has a legal personality separate
The use of the word may, indicates the permissive tenor of the and distinct from that of its stockholders. It has rights and
provision on intervention in giving the court the full measure of obligations which pertain solely to itself, not to any of its
discretion in permitting or disallowing the same. (Yan v. Manila component members (i.e., its stockholders). The members may
Banking Corp., G.R. No. 126731, July 11, 2002) change but the juridical person remains the same without
alteration. Its property is not merged with those owned by its
5. When may a person intervene in an action stockholders. (Asias Emerging Dragon Corporation v. Department of
Transportation and Communication, et al., G. R. No. 169914, March 24,
? 2008 and companion case citing various authorities)
SUGGESTED ANSWER: The two classes of persons who No stockholder can identify itself with the corporation. Nor
may intervene in an action. can any stockholder claim to possess a right which properly and
a. A person who has a legal interest exclusively belongs to the corporation. Thus, it is the corporation
1) in the matter in litigation, or alone who has an interest in the suit. (Asias Emerging Dragon
2) in the success of either of the parties, or Corporation, supra)
3). an interest against both, c. A person has a right to intervene in a
b. Any person who is so situated proceedings where any pronouncement of the Supreme Court
1) as to be adversely affected by affecting properties in a case would create a cloud over his
 33
title. [Heirs of Antonio Pael, et al., v. Court of Appeals, 371 SCRA 587 b. are or may be made against a person
(2001)] 1) who claims no interest in the subject matter, or
2) who has no interest which is, in whole or in
7. Who is a forced intervenor ? part, not disputed by the claimants
SUGGESTED ANSWER: A forced intervenor is some c. to compel them to interplead and litigate their several
stranger to the litigation who is debtor of one of the parties to the claims against themselves. (Sec. 1, Rule 62, ROC, arrangement and
action. By this means such debtor stranger becomes a forced numbering supplied)
intervenor; and the court, having acquired jurisdiction over his
person by means of citation, requires him to pay his debt, not to 2. Give examples of instances where an
his former creditor, but to the new creditor, who is creditor in the action of interpleader is proper.
main litigation. (PNB Management and Development Corp. v. R & R SUGGESTED ANSWER:
Metal Casting and Fabricating, Inc. G.R. No. 132245, January 2, 2002 a. A bank may file an action for interpleader where a
citing a 1921 case Tayabas Land Co. v. Sharruf) cashiers check is lost and there are two claimants, the holder and
In the same case the Supreme Court also cited Perla the original purchaser of the check.
Compania de Seguros, Inc. v. Ramolete. Through service of the b. An insurance company may file an action for
writ of garnishment, the garnishee becomes a virtual party to or a interpleader where it is not certain to whom it should pay the
forced intervenor in, the case and the trial court thereby acquires insurance proceeds as there are numerous claimants, each
jurisdiction to bind him to compliance with all orders and claiming to be entitled to said proceeds.
processes of the trial court with a view to the complete satisfaction c. A tenant may file an action for interpleader where
of the judgment of the court. there are two landlords who both claim a right to the rentals.

8. Enumerate the steps to be taken by a party

seeking to intervene in an action.
DEATH OF A PARTY, TRANSFER OF
SUGGESTED ANSWER: INTEREST AND CHANGE OF STATUS OF
a. The motion to intervene may be filed at any time
before rendition of judgment by the trial court. A copy of the
PARTIES
pleading-in-intervention shall be attached to the motion and served
on the original parties. (Sec. 2, Rule 19, ROC) 1. What is the nature of claims that survive
b. The motion is heard; the death of a party ?
c. The court grants leave and issues an order admitting SUGGESTED ANSWER: These are the claims that could
the complaint or answer in intervention. proceed as if the prospective plaintiff or defendant is still alive.
d. The answer to the complaint-in-intervention shall be Thus, the executor, administrator or any legal representative of the
filed within fifteen (15) days from notice of the order admitting the deceased may bring or defend suits.
same unless a different period is fixed by the court. (Sec. 4, Rule
19, ROC) 2. Give examples of claims that survive the
death of a party.
INTERPLEADER SUGGESTED ANSWER: Actions
a. For the recovery or protection of the property or rights
of the deceased. (Sec. 2, Rule 87, ROC)
1. What is an action for interpleader ? b. to recover real or personal property, or an interest
Alternatively, when may a person file an action for thereon, from the estate, or
interpleader ? c. to enforce a lien on real or personal property and
SUGGESTED ANSWER: An action in interpleader is a d. to recover damages for an injury to person or
special civil action which is filed against conflicting claimants property, real or personal. (Sec. 1, Rule 87, ROC).
a. whenever conflicting claims upon the same subject
 34
3. What is the litmus test in determining
whether an action survives ? Illustrate.
SUGGESTED ANSWER: The litmus test in determining
whether an action survives depends on the nature of the action
and the damage sued for.
In the causes of action which survive, the wrong complained
affects primarily and principally property and property rights, the
injuries to the person being merely incidental, WHILE in the
causes of action which do not survive, the injury complained of is
to the person, the property and rights of property affected being
incidental. (Ruiz, et al., v. The Court of Appeals, et al., G.R. No.
116909, February 25, 1999; Gonzales v. Philippine Amusement and
Gaming Corporation, et al., G. R. No. 144891, May 27, 2004)
4. What is the criteria for determining whether an
action survives the death of the plaintiff or petitioner ?
SUGGESTED ANSWER: The question as to whether an
action survives or not depends on the nature of the action and the
damage sued for. In the causes of action which survive, the wrong
complained [of] affects primarily and principally property and
property rights, the injuries to the person being merely incidental,
while in the causes of action which do not survive, the injury
complained of is to the person, the property and rights of property
affected being incidental. [Sumaljag v. Souses Literato, et al., G. R. No.
149787, June 18, 2008 citing Gonzalez v. PAGCOR, G. R. No. 144891,
May 27, 2004, 429 SCRA 533 in turn citing Bonilla v. Barcena, 71 SCRA
491 (1976)]
5. What is rule on survival of money claims ?
SUGGESTED ANSWER:
a. Contractual money claims survive.
1) Not yet filed. If the action for recovery of
money arising from contract, express or implied, is not yet
filed, it could not filed against the executor, administrator or
legal representative. It should be filed as a claim against
the estate.
2) Already filed. When the action is for recovery
of money arising from contract, express or implied, and the
defendant dies before entry of final judgment in the court in
which the action was pending at the time of such death, it
shall not be dismissed but shall instead be allowed to
continue until entry of final judgment.
A favorable judgment obtained by the plaintiff therein
shall be enforced in the manner especially provided in the
Rules of Court for prosecuting claims against the estate of
deceased persons. (Sec. 20, Rule 3, ROC)
b. Non-contractual money claims
1) General rule: non-contractual money claims do
not survive. If the claim for money does not arise out of
contract it should be dismissed.
2) Non-contractual money claim survives if to
recover damages for an injury to person or property, real or
personal. (Sec. 1, Rule 87, ROC)
.
6. When A (buyer) failed to pay the remaining
balance of the contract price after it became de and
demandable, B (seller) sued him for collection before the
RTC. After both parties submitted their respective evidence,
A perished in a plane accident. Consequently, his heirs
brought an action for the settlement of the his estate and
moved for the dismissal of the collection suit.
a. Will you grant the motion ? Explain.
b. Will your answer be the same if A died while the
case is already on appeal to the Court of Appeals ?
c. In the same case, what is the effect if B died
before the RTC has rendered judgment ?
SUGGESTED ANSWER:
a. No. Since the action is for recovery of money arising
from a contract, the case should be allowed to continue until entry
of final judgment. (Sec. 20, Rule 3, ROC)
b. Yes. There is no entry of final judgment yet, so the
case shall be allowed to continue.
c. Since the action is for the recovery of money arising
from a contract, it shall be allowed to continue until entry of final
judgment.
d. The favorable judgment obtained by the plaintiff A,
shall be enforced in the manner especially provided in the Rules of
Court for prosecuting claims against the estate of deceased
persons. (Sec. 20, Rule 3, ROC)
7. Explain the nature and effect of the claims
that do not survive the death of a party, an give examples.
Alternatively, what are the actions that are extinguished
with the death of the person under obligation ?
SUGGESTED ANSWER: These are the claims which
cannot be instituted against the executor, administrator or any
legal representative of the deceased. These claims could
 35
however be prosecuted in the estate proceedings of the
deceased.
They are dismissed upon the death of the defendant.
As a general rule personal actions do not survive.
Exception: action for the recovery of money arising from contract,
express or implied, if the defendant dies before entry of final
judgment. (Sec. 20, Rule 3, ROC)
Examples: No action upon a claim for the recovery of
money or debt or interest thereon shall be commenced against the
executor or administrator. (Sec. 1, Rule 87, ROC) Claims other
than those stated in the previous heading referring to Secs. 1 and
2, Rule 87, ROC.
8. A sued X, the treasurer of As firm,
because X misappropriated the P1 million from corporate
funds. A likewise was able to secure a writ of attachment
upon Xs properties. During the proceedings and prior to
final judgment, X died. His heirs now filed a motion to
dismiss because the suit was not for collection of a sum of
money arising from contractual obligations. A opposed the
same contending that, while it is true that the claim does not
survive, however the existence of the writ of attachment
negates dismissal. Whose contention is correct ? Reason
out your answer.
SUGGESTED ANSWER: The contention of Xs heirs is
correct.
Claims that do not survive are dismissed even if attachment
levied on defendants property. REASON: The purpose of the
attachment which is to secure the outcome of the trial no longer
exists, and so with the reasons for the issuance of the writ of
attachment, insofar as the deceased is concerned. (Malolos v. Asia
Pacific Finance Corporation, 147 SCRA 61)
9. What is the duty of the attorney upon the death of
a party whether plaintiff or defendant, occurring at any stage
of the action, if the claim does not survive ?
SUGGESTED ANSWER:
a. If death occurs during the pendency of the action
b. and the claim is not extinguished by death
c. Counsel shall inform the court of such death
d. Within thirty (30) days after such death
e. giving the name and address of the legal
representative(s). (1st par., Sec. 16, Rule 3, ROC)
10. What is the rationale behind Rule 3, Sec. 16 of the
Rules of Court that requires the court to be notified of the
names and addresses of the legal representative or
representatives in case of the death of a party to a pending
case where the claim survives ?
SUGGESTED ANSWER: The purpose behind the rule is
the protection of the right to due process of every party to the
litigation who may be affected by the intervening death. The
deceased litigant is herself or himself protected as he/she
continues to be properly represented in the suit through the duly
appointed legal representative of his estate. [Sumaljag v. Souses
Literato, et al., G. R. No. 149787, June 18, 2008 citing Napere v.
Barbarona, G. R. No. 160426, January 21, 2008, 543 SCRA 376, 382 in
turn citing Heirs of Bertuldo Hinog v. Melicor, 455 SCRA 460, 478 (2005)]
The underlying principle behind the rule requiring a formal
substitution of heirs is not really because it is a jurisdictional
requirement, but because non-compliance therewith results in the
undeniable violation of the right to due process of those, who not
duly notified of the proceedings are substantially affected by the
decision rendered therein. [Carandang v. Heirs of Quirino A. de
Guzman, 508 SCRA 469 (2006)]
11. May the heirs of the deceased be allowed to
substitute for the deceased despite the existence or absence
of an executor or administrator ? Reasons.
SUGGESTED ANSWER: Yes. The mandate of the Rules
is clear, The heirs of the deceased may be allowed to be
substituted for the deceased, without requiring the appointment of
an executor or administrator and the court may appoint a guardian
ad litem for the minor heirs. (ROC, Rule 3, Sec. 16, 2nd par.)
In numerous cases the Supreme Court has ruled that for the
protection of the interests of the decedent, the heirs are
recognized as proper representatives of the decedent, even when
there is already an administrator appointed by the court. When no
administrator has been appointed, there is all the more reason to
recognize the heirs as the proper representatives of the deceased.
[Sumaljag v. Souses Literato, et al., G. R. No. 149787, June 18, 2008
citing Gochan v. Young, G. R.. No. 131889, march 12, 2001, 354 SCRA
207)
12. Is an action for quieting of title one that survives
death ? Explain briefly.
SUGGESTED ANSWER: An action for quieting of title with
damages is an action involving real property. It is thus, an action
that survives which may be commenced against the executor or
 36
administrator, as the claim is not extinguished by the death of a
party.(ROC, Rule 87, Sec. 1) And when a party dies in an action
that survives, the proper notification should be made by the
counsel within thirty (30) days after death and substitution of the
heirs may be allowed without requiring the appointment of an
executor or administrator. (ROC, Rule 3, Sec. 16)
13. Who are the legal representatives whose names
and addresses should be furnished to the court of the
deceaseds counsel ?
SUGGESTED ANSWER: The term legal representative
refers to those authorized by law the administrator, the executor
or guardian who under the rule on settlement of estate of
deceased persons is constituted to take over the estate of the
deceased. [Sumaljag v. Souses Literato, et al., G. R. No. 149787, June
18, 2008 citing Justice Oscar M. Herrera (ret.), Remedial Law, Vol. I, 2007
ed.]
Reason: The terms administrator, executor, or guardian
referred to in the old Rules were deleted and deemed included in
the term legal representative or representatives under the new
Rules. (Ibid.)
14. May a co-defendant of the deceased be allowed
as a substitute for the deceased where proferred justification
for the substitution is the alleged transfer of the interests of
the deceased in the litigation prior to the death of the
deceased ? Reasons.
SUGGESTED ANSWER: No because of the following
reasons:
a. The co-defendant is not considered as a legal
representative, which refers only to the heirs, the executor or
administrator of the deceased;
b. The substitute co-defendant having an interest to
protect cannot at the same time represent and fully protect the
interest of the deceased transferor;
c. The counsel had every opportunity to manifest to the
court changes in interest that transpired in the course of the
litigation while the client was still alive. The counsel of the
deceased has, by his clients death, lost the authority to represent
the deceased hence could not validly manifest that there was a
transfer of interest to the substitute. (Sumaljag v. Souses Literato, et
al., G. R. No. 149787, June 18, 2008)
15. A filed a complaint for the recovery of
ownership of land against B who was represented by her
counsel X. In the course of the trial, B died. However, X
failed to notify the court of Bs death. The court proceeded to
hear the case and rendered judgment against B. After the
judgment became final, a writ of execution was issued
against C, who being Bs sole heir, acquired the property.
a. If you were counsel of C, what course of action
would you take ?
SUGGESTED ANSWER: I would move for the quashal of
the writ of execution and annulment of the judgment for being void.
The court did not obtain jurisdiction over C and he was not
afforded due process because of the failure to have him be
notified and substituted for his father. The claim which is recovery
of ownership of real property is one that survives the death of B,
Cs father.
NOTE: Counsels failure to notify will not vitiate
proceedings and judgment. The failure of counsel to comply with
his duty to inform the court of the death of his client and no
substitution of the deceased party, will not invalidate the
proceedings and the judgment thereon if the action survives the
death of such party. (Benavidez v. Court of Appeals, et al., G.R. No.
125848, September 6, 1999)
RECONCILIATION: For purposes of the Bar ignore
Benavidez.
b. Did the failure of counsel X to inform the court of
Bs death constitute direct contempt ?
SUGGESTED ANSWER: The failure to inform constitute
indirect contempt because it was not done in the presence of the
court.
16. What is the procedure and effect of the
death of the PLAINTIFF while the ACTION IS PENDING in the
trial court or ON APPEAL BEFORE ENTRY OF FINAL
JUDGMENT in the court ?
SUGGESTED ANSWER:
a. The counsel reports the death;
b. There is substitution by the legal representative or
heirs of the deceased plaintiff, whether the claim survives or not.
c. The court requires the legal representative of the
deceased plaintiff to explain why the action should not be
dismissed because of the death of the plaintiff, where the claim
does not survive.
d. If the claim is extinguished by the plaintiff's death the
case is dismissed.
 37
If the claim survives the death of the plaintiff, the case
continues, with the substitution of the deceased plaintiff by his
legal representative (s), or his heirs.
17. What is the procedure and effect of death
of the PREVAILING PLAINTIFF AFTER ENTRY OF JUDGMENT
or order ?
SUGGESTED ANSWER:
a. The counsel reports the death;
b. There is substitution by the legal representative or
heirs of the deceased plaintiff, whether the claim survives or not.
c. The substitute executor, administrator or successor in
interest may apply for the issuance of a writ of execution. (Sec. 7
[a], Rule 39, ROC)
18. Procedure and effect of DEATH OF PREVAILING
DEFENDANT AFTER ENTRY OF JUDGMENT or order. Same
as the above procedure except that the words PREVAILING
PLAINTIFF are changed to PREVAILING DEFENDANT.
19. What is the procedure and effect of death
of the PREVAILING PLAINTIFF AFTER EXECUTION IS
ISSUED ?
SUGGESTED ANSWER:
a. The counsel reports the death;
b. There is substitution by the legal representative or
heirs of the deceased plaintiff, whether the claim survives or not.
c. The usual procedure for execution is then followed.
d. The amounts recovered through execution form part
of the estate of the deceased prevailing plaintiff.
20. Procedure and effect of death of the
PREVAILING DEFENDANT AFTER EXECUTION IS ISSUED.
Same as the above procedure except that the words PEVAILING
PLAINTIFF are changed to PREVAILING DEFENDANT
21. What is the procedure and effect of the
death of a DEFENDANT while the ACTION IS PENDING in the
trial court or ON APPEAL BEFORE ENTRY OF FINAL
JUDGMENT in the court ?
SUGGESTED ANSWER:
a. The counsel reports the death;
b. There is substitution by the legal representative or
heirs of the deceased plaintiff, whether the claim survives or not.
c. The plaintiff is asked to explain why the suit should
not be dismissed as a result of the death of the defendant.
d. If the action is for the recovery of money arising from
contract, express or implied, for the recovery or protection of the
property or rights of the deceased. (Sec. 2, Rule 87, ROC), to
recover real or personal property, or an interest thereon, from the
estate, or to enforce a lien on real or personal property and to
recover damages for an injury to person or property, real or
personal. (Sec. 1, Rule 87, ROC). the case shall be allowed to
continue until entry of final judgment.
When the action is for recovery of money arising from
contract, express or implied, and the defendant dies before entry
of final judgment in the court in which the action was pending at
the time of such death, it shall not be dismissed but shall instead
be allowed to continue until entry of final judgment.
A favorable judgment obtained by the plaintiff therein shall
be enforced in the manner especially provided in the Rules of
Court for prosecuting claims against the estate of deceased
persons. (Sec. 20, Rule 3, ROC)
If the claim for money does not arise out of contract (but not
for recovery arising from physical injuries, etc.), it should be
dismissed.
e. A favorable judgment obtained by the plaintiff therein
shall be enforced in the manner especially provided in the Rules of
Court for prosecuting claims against the estate of a deceased
person. (Sec. 20, Rule 3, ROC)
f. If it is a claim that survives another case may be filed
against the executor, administrator, estate or other legal
representative of the deceased.
22. A filed an action for damages against B in
the Regional Trial Court of the National Capital Judicial
Region, Manila Branch. After trial, judgment was rendered in
favor of A. B appealed to the Court of Appeals, but pending
the appeal, B died.
What effect will Bs death have on the appeal ? Explain.
SUGGESTED ANSWER: None. A claim for damages
survives the death of the defendant. The appeal should be
allowed to continue until entry of final judgment.
23. What is the procedure and effects of death of a
PARTY AFTER LAPSE OF PERIOD TO APPEAL or AFTER
ENTRY OF FINAL JUDGMENT in the court ?
SUGGESTED ANSWER:
 38
a. The counsel reports the death;
b. There is substitution by the legal representative or
heirs of the deceased defendant, whether the claim survives or
not.
c. The plaintiff:
1) In case the judgment is for the recovery of real
or personal property, or the enforcement of a lien thereon,
applies for a writ of execution which is enforced against the
defendant's executor, administrator or successor in interest.
(Sec. 7 [b], Rule 39, ROC)
2) In case the judgment is other than for the
above, the plaintiff files a claim against the estate for the
amount of the judgment. (Sec. 5, Rule 86, ROC; Py En Cheng
v. Herrera, 70 SCRA 1307)
24. A filed an action for damages against
B in the Regional Trial Court of the National Capital Judicial
Region, Manila Branch. After trial, judgment was rendered in
favor of A. B appealed to the Court of Appeals, but pending
the appeal, B died.
Assuming that the appeal proceeded and the judgment
was affirmed, how may the judgment be enforced ?
SUGGESTED ANSWER: Since the claim is one that
survives because it is one to recover damages (Sec. 1, Rule 87,
ROC), the plaintiff A, should apply for a writ of execution which is
enforced against the defendant's executor, administrator or
successor in interest. (Sec. 7 [b], Rule 39, ROC)
25. What is the procedure to be followed upon
the death of a LOSING PARTY AFTER EXECUTION ?
SUGGESTED ANSWER:
a. The counsel reports the death;
b. There is substitution by the legal representative or
heirs of the deceased plaintiff, whether the claim survives or not.
c. The property actually levied is sold for the satisfaction
of the judgment obligation and the person making the sale shall
account to the deceased defendant's executor or administrator for
any surplus in his hands. (Sec. 7 [c], Rule 39, ROC)
26. When A (buyer) failed to pay the remaining
balance of the contract price after it has become due and
demandable, B (seller) sued him for collection before the
RTC. After both parties submitted their respective evidence,
A perished in a plane accident. Consequently, his heirs
brought an action for the settlement of his estate and moved
for the dismissal of the collection suit.
a. Will you grant the motion? Explain.
b. Will your answer be the same if A died while the
case is already on appeal to the Court of Appeals? Explain.
c. In the same case, what is the effect if B died
before the RTC has rendered judgment ?
d. Supposing the trial court rendered a judgment in Bs
favor, after substitution of the heirs, how shall such judgment
be enforced ?
SUGGESTED ANSWER:
a. No. Since the action is for recovery of money arising
from a contract, the case should be allowed to continue until entry
of final judgment. (Sec. 20, Rule 3, ROC)
b. Yes. There is no entry of final judgment yet, so the
case shall be allowed to continue.
c. Since the action is for the recovery of money arising
from a contract, it shall be allowed to continue until entry of final
judgment.
d. The favorable judgment obtained by the plaintiff A,
shall be enforced in the manner especially provided in the Rules of
Court for prosecuting claims against the estate of deceased
persons. (Sec. 20, Rule 3, ROC)
DOCTRINE OF PRECONDITIONS,
PRIOR RESORT AND ALTERNATIVE
MODES OF DISPUTE RESOLUTION
DOCTRINE OF PRECONDITIONS OR PRIOR
RESORT
The doctrine which requires that certain matters or
controversies be resolved utilizing nonjudicial methods before
resort could be had to judicial intervention. Failure to do so could
result in a dismissal of the action on the ground of prematurity of
failure to comply with a condition precedent for filing the claim.
[Sec. 1 (j), Rule 16, ROC]
For example, prior resort to settlement under the
Katarunggang Pambarangay, exhaustion of administrative
remedies, earnest efforts towards a compromise, etc., are required
in certain instances before filing a suit in court.
 39
PRECONDITIONS AND PRIOR RESORT
1. Are there instances where there is a
requirement for efforts to compromise prior to the institution
of a suit ?
SUGGESTED ANSWER: Yes. No suit between members
of the same family shall prosper unless it should appear from the
verified complaint or petition that earnest efforts toward a
compromise have been made, but the same have failed. If it is
shown that no such efforts were in fact made, the case must be
dismissed.
This rule shall not apply to cases which may not be the
subject of compromise under the Civil Code. (Art. 151, The Family
Code)
2. What suits between members of the same family
are subject to efforts towards a compromise ?
SUGGESTED ANSWER: Those between
a. Between husband and wife;
b. Between parents and children;
c. Between other ascendants and descendants; and
d. Between brothers and sisters, whether of the full or
half-blood. (Art. 150, The Family Code)
The author submits that the requirement for efforts towards
a compromise does not include illegitimate relations because of
the natural antipathy between illegitimates and legitimates. This
view is buttressed by reference to Art. 150 of the Family that the
requirement does not apply to collateral relatives, except as
between brothers and sisters Of course, there may some
disagreement to the above view considering the Filipino extended
family system. But where does the line stop ?
3. A sues his brother-in-law B who moves for
the dismissal of the suit on the ground that no earnest efforts
to compromise were undertaken before the suit was filed.
Rule on the motion.
SUGGESTED ANSWER: Denied. The requirement for
earnest efforts to compromise do not include in-laws.. Whenever
a stranger is a party in a case involving family members, the
requisite showing of earnest efforts to compromise is no longer
mandatory.
The enumeration of brothers and sisters do not
comprehend sisters-in-law (hence also brothers-in-law).
Furthermore, religious relationship and relationship by
affinity are not given any legal effect in this jurisdiction. (Spouses
Hontiveros v. Regional Trial Court, etc., et al., G.R. No. 125465, June 29,
1999)
4. What is the reason for prior resort to compromise
?
SUGGESTED ANSWER: It is difficult to imagine a sadder
and more tragic spectacle than a litigation between members of
the same family. It is necessary that every effort toward a
compromise is resorted to before a litigation is allowed to breed
hate and passion in the family. It is known that law suits between
close relatives generate deeper bitterness than strangers. (vda. De
Manalo, et al., Court of Appeals, et al., G.R. No. 129242, January 16,
2001)
5. What cases are not subject to compromise,
hence there maybe a suit filed even without earnest efforts
towards a compromise ?
SUGGESTED ANSWER: No compromise upon the
following questions shall be valid:
a. The civil status of persons;
b. The validity of a marriage or legal separation;
c. Any ground for legal separation;
d. Future support;
e. The jurisdiction of courts;
f. Future legitime. (Art. 2035, Civil Code of the Philippines)
6. A petition for judicial settlement of estate was
dismissed for failure to aver that there were serious efforts
towards a compromise among the immediate members of the
same family prior to the filing of the suit. Was the dismissal
premised on this ground proper ? Why ?
SUGGESTED ANSWER: No. The case was not dismissed
properly.
The rule on serious efforts towards a compromise applies
only to civil actions and not to special proceedings.
Reason: Civil actions are essentially adversarial. In this
case, the petition for the judicial settlement merely seeks to
establish the fact of death and to be duly recognized as among the
heirs so those declared can validly exercise their right to
participate in the settlement and liquidation of the estate of the
deceased consistent with the limited and special jurisdiction of the
probate court. (vda. De Manalo, et al., v. Court of Appeals, et al., G.R.
No. 129242, January 16, 2001)
 40
KATARUNGGANG PAMBARANGAY
1. What is the object of the Katarunggang
Pambarangay Law ?
SUGGESTED ANSWER:
a. To effect amicable settlement of disputes among family
and barangay members at the barangay level without judicial
recourse and consequently
b. help relieve the courts of docket congestion.
2. What is the importance of knowing the
concept of barangay conciliation ?
SUGGESTED ANSWER: Barangay referral condition
precedent to filing of a complaint:
a. Before a court, or
b. Before any other government office for adjudication.
(Sec. 412 [a], R.A. No. 7160)
All disputes are subject to referral. The lupon of each
barangay shall have authority to bring together the parties actually
residing in the same city or municipality for amicable settlement of
all disputes. (Sec.408, R.A. No. 7160)
The referral must be made irrespective of the amount and
nature of the dispute and whether the case falls within the
jurisdiction of the Municipal Trial Court or the Regional Trial Court.
Absence of barangay referral is ground for motion to
dismiss. The ground for a motion to dismiss if there is failure to
comply with the barangay referral is now, That a condition
precedent for filing the claim has not been complied with.
(Sec. 1 [j], Rule 16, ROC)
It is to be noted that there are certain instances where may
be no need for barangay referral:
a. Disputes which need not be brought for barangay
conciliation. See infra.
b. Instances where cases may be filed directly with the
court without need for barangay conciliation. See infra.
3. What is the effect of failure to raise the
issue of non-compliance with the requirement for barangay
referral whether in a motion to dismiss or in the answer ?
SUGGESTED ANSWER: The failure of a party to
specifically allege the fact that there was no compliance with the
Barangay conciliation procedure constitutes a waiver of that
defense. (Corpuz v. Court of Appeals, et al., G.R. No. 117005, June 19,
1997)
Defenses and objections not pleaded either in a motion
to dismiss or in the answer are deemed waived. (1st sentence,
Sec. 1, Rule 9, ROC)
If the non-referral is raised only after arraignment, this is
deemed a waiver. (Banares II, et al., v. Balising, et al., G.R. No.
132624, March 13, 2000)
4. On March 17, 2007 B filed suit against S
for collection of sum of money stating in his complaint: "that
xxx defendant is of legal age, Filipino and with postal office
address at C-4 Ina Mansion, Kisad Road, Baguio City where
he may be served with summons and other legal processes.
The defendant filed a motion to dismiss alleging that he also
resided in Baguio City, alleging, among others, that there was
failure to refer to barangay conciliation. Resolve the motion.
SUGGESTED ANSWER: Motion denied. It is clear from
the complaint that the defendant does not reside in Baguio City.
Post office address is not considered as residence. This is not
affected by the defendants motion stating that he also resided in
Baguio City. There is no need for prior referral to the barangay in
the absence of showing in the complaint itself that the parties
reside in the same city or municipality. (Boleyley v. Hon. Villanueva,
etc., et al., G.R. No. 128734, September 14, 1999)
5. Is residence in the barangay already
sufficient to bring the matter within the ambit of the
requirement for barangay referral ?
SUGGESTED ANSWER: No. Residence alone, without
membership in the barangay or mere membership in the barangay
alone without residence would defeat the purpose of the law which
provides for an alternative to litigations in dispute settlement to
members of the corresponding barangays who are actually
residing therein. Thus, the requirement is residence coupled
with membership or vice-versa. (Bejer v. Court of Appeals, et al., 169
SCRA 566)
6. Luis is the owner of a five-door apartment
unit, three doors of which he has leased to Fe, Gary, and
Marilou who have been his tenants for close to thirty years.
He occupies the fourth door as his own residence. The fifth
door is vacant. Alleging that he needs to repossess all three
doors for the use of his son, Fern, who had recently gotten
married, and who does not allegedly have a residence of his
own, he sued after the requisite letters to vacate Fe, Gary and
 41
Marilou before the Metropolitan Trial Court for unlawful
detainer. Fe, Gary, and Marilou answered the complaint and
set up the defense that ejectment was not proper because the
fifth door was available for Ferns residence. The trial judge,
however, decreed ejectment. On appeal to the Regional Trial
Court, Fe, Gary and Marilou alleged that the decision was null
and void for lack of jurisdiction, there having been no prior
confrontation among the parties before the Lupong
Tagapayapa pursuant to the Local Government Code.
Can Fe, Gary and Marilou validly challenge the
jurisdiction of the Metropolitan Trial Court ? Explain.
SUGGESTED ANSWER: No. Their failure to raise the
defense of non-referral is considered a waiver of such defense.
7. What disputes need not be brought for
barangay conciliation ?
SUGGESTED ANSWER:
a. When the party is the government, or any subdivision
or instrumentality thereof.
b. When one party is a public officer or employee, and
the dispute relates to the performance of his public functions.
c. Where the dispute involves real properties located in
different cities or municipalities unless the parties thereto agree to
submit their differences to amicable settlement by an appropriate
lupon.
d. Disputes involving parties who actually reside in
barangays of different cities or municipalities except where such
barangay units adjoin each other and the parties thereto agree to
submit their differences to amicable settlement by an appropriate
lupon.
e. Such other disputes which the President of the
Philippines may determine in the interest of justice or upon the
recommendation of the Secretary of Justice. (Sec. 408, R.A. No.
7160)
f. Labor disputes need not be brought for barangay
conciliation because this would defeat the salutary purpose of the
Labor Code which mandates that the Labor Arbiters must first
conciliate and mediate in order to expeditiously resolve the
dispute. To require referral to the Barangay would result to delay
in resolving labor disputes. (Montoya v. Escayo, 171 SCRA 442)
g. Where the dispute involves juridical persons.
8. For failure of the tenant, X, to pay rentals,
A, the court-appointed administrator of the estate of Henry
Datu, decides to file an action against the former for the
recovery of possession of the leased premises located in
Danao City and for the payment of the accrued rentals in the
total amount of P500,000.00.
Is prior referral to the Lupon under the Local
Government Code necessary ?
SUGGESTED ANSWER: No because one of the
disputants, the estate, is not a natural person.
9. Give the instances where the parties may
go directly to court without referral to barangay settlement ?
SUGGESTED ANSWER:
a. Where actions are coupled with provisional remedies
such as preliminary injunction, attachment, delivery of personal
property, and support pendente lite.
b. Where the action may otherwise be barred by the
statute of limitations. [Sec. 412 (b), R.A. No. 7160]
10. In what instance may a trial court refer the
matter to the barangay for conciliation ?
SUGGESTED ANSWER: The court in which non-criminal
cases not falling within the authority of the barangay under the
Local Government Code are filed, may, at any time before trial,
motu proprio refer the case to the Lupon concerned for amicable
settlement. (last par., Sec. 408, R.A. No. 7160)
11. After pre-trial of a case the court motu
proprio referred the case for amicable settlement between the
parties to the Lupong Tagapayapa of Barangay 2, Zone 3 of
Valenzuela where the factory is located. The defendant
questioned the order contending that the court had no
authority to do so as both parties had already gone through
the pre-trial where amicable settlement was foreclosed and
the parties were already going to trial.
Comment on the defendants contention.
SUGGESTED ANSWER: Without merit.
The court in which non-criminal cases not falling within the
authority of the barangay under the Local Government Code are
filed, may, at any time before trial, motu proprio refer the case to
the Lupon concerned for amicable settlement. (last par., Sec. 408,
R. A. No. 7160)
12. On June 14, 2008, a complaint for ejectment
was filed before the MTC by Amparo, assisted by counsel.
 42
The parties reside in barangays of different cities which do
not adjoin each other. The defendant filed a motion for
referral to the proper barangay for arbitration and/or
conciliation which the court granted through its Order dated
November 7, 2005 directing the parties to conciliate before
the Chairman of barangay 676, Zone 73, Ermita, Manila.
Meanwhile, Atty. Raul entered his appearance as counsel and
filed a motion to set aside the Order of November 7, 2008.
The Court denied the same and referred the case to the said
barangay for conciliation proceedings under penalty of the
case being dismissed. The Courts action was premised
upon section 408 of Republic Act No. 7160 (The
Katarunggang Pambarangay provisions of the Local
Government Code), which provides that, The Court in which
non-criminal cases not falling within the authority of the
lupon under this Code are filed, may at any time before trial,
motu proprio, refer the case to the lupon concerned for
amicable settlement.
Was the action of the Court correct ?
SUGGESTED ANSWER: No. Referring a matter covered
by the above cited provision that falls under the Rule of Summary
Procedure to the Lupon is an unsound exercise of discretion. The
Rule of Summary Procedure was promulgated for the purpose of
achieving an expeditious and inexpensive determination of the
case. (Gachou v. De Vera, Jr., SCRA 540) The fact that unlawful
detainer cases fall under summary procedure, speedy resolution
thereof is thus deemed a matter of public policy. Thus, the Rule
frowns on delays. Manifestly, the act of referring the subject case
to the lupon subverts the very nature of the Rule and defeats the
objective of expediting the adjudication thereof. (Farrales, et al., v.
Judge Camarista, A.M. MTJ-99-1184, March 2, 2000)
BEWARE: The above doctrine is applicable only where
there is no requirement for prior referral to the lupon. Where the
parties reside in the same city or municipality, or in adjoining
barangays of different cities or municipalities, prior resort to the
barangay is a requirement before filing the case in Court, and the
Court does not have the discretion to make a referral.
13. What are the rules of venue for barangay
conciliation ?
SUGGESTED ANSWER:
a. Disputes between persons actually residing in the
same barangay shall be brought for amicable settlement before
the lupon of said barangay.
b. Those involving actual residents of different
barangays within the same city or municipality shall brought in the
barangay where the respondent or any of the respondents actually
resides, at the election of the complainant.
c. All disputes involving real property or any interest
therein shall be brought in the barangay where the real property or
the larger portion thereof is situated.
d. Those arising at the workplace where the contending
parties are employed or at the institution where such parties are
enrolled for study, shall be brought in the barangay where such
workplace or institution is located. (Sec. 409, R.A. No. 7160)
14. What is the procedure for settlement under
the Katarunggang Pambarangay ?
SUGGESTED ANSWER:
a. Constitution of Lupong Tagapamayapa composed of
the Punong Barangay as chairman and ten (10) to twenty (20)
members. The barangay chairman is the concurrent Lupon
secretary.
b. Filing of verbal or written complaint with the Punong
Barangay who is also the Lupon Chairman. [Sec. 410 (a), R.A. No.
7160; Sec. 4, Rule VI, Katarunggang Pambarangay Rules]
c. Upon receipt of the complaint, the Punong Barangay
shall within the next working day summon the respondent, the
complainant and their witnesses to appear before him for
mediation. [Sec. 410 (b), R.A. No. 7160]
d. The respondent shall answer the complaint orally or
in writing and interpose a counterclaim, cross-claim or a third party
complaint. (Sec. 5, Rule VI, Katarunggang Pambarangay Rules)
e. The Punong Barangay has fifteen (15) days from the
first setting to mediate. [Sec. 410 (b), R.A. No. 7160; Sec. 10, Rule VI,
Katarunggang Pambarangay Rules]
f. Upon failure of the mediation efforts, the Punong
Barangay shall set a date fix the constitution of the panel known
as the Pangkat ng Tagapagkasundo composed of three (3)
members chosen from the Lupon. The three (3) members shall
elect the chairman and the secretary. The Pangkat secretary shall
prepare the minutes of the Pangkat and shall submit a copy
attested by the Pangkat chairman to the Lupon secretary who
shall report to the proper municipal or metropolitan court. (Sec.
410 [d], R.A. No. 7160)
g. The Pangkat shall be convened not later than three
(3) days from its constitution. The Punong Barangay and the
Pangkat shall proceed to hear the matter. (Sec. 410 [d], R.A. No.
7160)
 43
h. The Pangkat shall exert all efforts to settle and
resolve the dispute within fifteen (15) days from the day it
convenes, extendible in its discretion for another period not to
exceed fifteen (15) more days. (Sec. 410 [e], R.A. No. 7160; Sec. 10
[b], Rule VI, Katarunggang Pambarangay Rules)
i. Where the parties have agreed to arbitrate, the
Punong Barangay of the Pangkat, as the case maybe, shall after
the hearing make the award not earlier than the sixth day but not
later than the fifteenth day following the date of such hearing.
(Sec. 10 [c], Rule VI, Katarunggang Pambarangay Rules)
15. What is the difference, if any, between the
conciliation proceedings under the Katarunggang
Pambarangay Law and the negotiations for an amicable
settlement during the pre-trial conference under the Rules of
Court ?
SUGGESTED ANSWER:
a. Lawyers are prohibited from appearing during
conciliation proceedings under the Katarunggang Pambarangay
Law WHILE lawyers are allowed to appear and represent the
parties during the pre-trial conference.
b. A party who does not appear during barangay
conciliation proceedings may be subject to arrest WHILE this is
not so with regard to failure to appear during the pre-trial
conference.
16. What are the forms of settlement under the
Katarunggang Pambarangay ?
SUGGESTED ANSWER:
a. Mediation and conciliation. Interchangeable terms
indicating the process whereby disputants are persuaded by the
Punong Barangay or Pangkat to amicably settle their disputes.
[Rule II (1), Katarunggang Pambarangay Rules]
b. Arbitration is a process for the adjudication of
disputes by which the parties agree to be bound by the decision of
a third person or body in place of a regularly organized tribunal.
[Rule II (h), Katarunggang Pambarangay Rules]
17. How are barangay settlements executed ?
SUGGESTED ANSWER: A lupon is authorized to execute
settlements/agreements within a period of six months from the
date of such settlement/agreement. (Sec. 417, R.A. No. 7160)
Beyond the above period, the course of action should be for
the prevailing party to file a motion for the execution of the
settlement/agreement before the appropriate municipal or
metropolitan trial court. (Ibid.)
18. May a dismissal without prejudice become final
?
SUGGESTED ANSWER: Yes. The dismissal without
prejudice of a complaint does not however mean that said
dismissal order was any less final. Such order of dismissal is
complete in all details, and though without prejudice, nonetheless
finally disposed of the matter. It was not merely an interlocutory
order but a final disposition of the complaint. (Banares II, et al., v.
Balising, et al., G.R. No. 132624, March 13, 2000)
When a case covered by the 1991 Revised Rule on
Summary Procedure is dismissed without prejudice for non-
referral of the issues to the Lupon, the same may be revived only
after the dispute subject of the dismissed case is submitted to
barangay conciliation as required under the Local Government
Code. There is no declaration to the effect that said case may be
revived by mere motion even after the fifteen-day period within
which to appeal or to file a motion for reconsideration has lapsed.
Moreover, the 1991 Revised Rule on Summary Procedure
expressly provides that the Rules of Court applies suppletorily to
cases covered by the former.
EXHAUSTION OF ADMINISTRATIVE
REMEDIES
1. What is the doctrine of exhaustion of
administrative remedies ?
SUGGESTED ANSWER: If a remedy within the
administrative machinery can still be resorted to by giving the
administrative officer concerned every opportunity to decide on a
matter that comes within his jurisdiction then such remedy must be
exhausted first before the court's judicial power can be sought.
The premature invocation of court intervention is fatal to
one's cause of action. (Union Bank of the Philippines v. Court of
Appeals, et al., G.R. No. 131729, May 19, 1998)
2. How are administrative remedies exhausted ?
SUGGESTED ANSWER: The party with an administrative
remedy must not merely initiate the prescribed procedure to obtain
relief, but also pursue it to its appropriate conclusion before
seeking judicial intervention in order to give the administrative
agency an opportunity to decide the matter by itself correctly and
 44
prevent unnecessary and premature resort to the court. (Diamonon
v. Department of Labor and Employment, et al., G.R. No. 108951, March
7, 2000; Spouses Zabat v. Court of Appeals, et al., G.R. No. 122089,
August 23, 2000)
3. What are the reasons for the existence of the
doctrine of exhaustion of administrative remedies ? In short,
what are its purposes.
SUGGESTED ANSWER:
a. Ensures an orderly procedure which favors a
preliminary sifting process, particularly with respect to matters,
peculiarly within the competence of the administrative agency,
b. Avoidance of interference with functions of the
administrative agency by withholding judicial action until the
administrative process had run its course,
c. Prevention of attempts to swamp the courts by resort
to them in the first instance. (Carale, et al., v. Abarintos, et al., G.R.
No. 120704, March 3, 1997)
d. The administrative process is intended to provide
less expensive and more speedy solutions to disputes.
e. For reasons of law, comity, and convenience. (Union
Bank of the Philippines v. Court of Appeals, et al., G.R. No. 131729, May
19, 1998)
4. What are the exceptions to the rule on
exhaustion of administrative remedies ?
SUGGESTED ANSWER:
a. Where the question is purely legal.
b. Where judicial intervention is urgent.
c. When its application may cause great and irreparable
damage.
d. When the controverted acts violate due process.
e. Failure of a high government official from whom the
relief is sought to act on the matter.
f. When the issue of non-exhaustion of administrative
remedies has been rendered moot. (Carale, et al., v. Judge
Abarintos, et al., G.R. No. 120704, March 3, 1997)
g. When the administrative action is patently illegal
amounting to lack or excess of jurisdiction.
h. When there is estoppel on the part of the
administrative agency concerned.
i. When there is irreparable injury.
j. When the respondent is a department secretary
whose acts as an alter ego of the President bears the implied and
assumed approval of the later.
k. When to require exhaustion of administrative
remedies would be unreasonable.
l. When it would amount to a nullification of a claim.
m. When the subject mater is a private land in a land
case proceedings.
n. When the rule does not provide a plain, speedy and
adequate remedy. (Paat, etc. v. Court of Appeals, et al., 266 SCRA
167)
ARBITRATION AND ALTERNATIVE MODES
OF DISPUTE RESOLUTION
1. What is alternative dispute resolution ?
SUGGESTED ANSWER: For purposes of the Alternative
Dispute Resolution Act of 2004, any process or procedure used to
resolve a dispute or controversy, other than by adjudication of a
presiding judge of a court or an officer of a government agency, as
defined in said law, in which a neutral third party participates to
assist in the resolution of issues, which include arbitration,
mediation, conciliation, early neutral evaluation, mini-trial, or any
combination thereof. [Rep. Act No. 9285, Sec. 3 (a), words in italics
supplied]
2. What is meant by court-annexed mediation ?
SUGGESTED ANSWER: Court-annexed mediation is a
voluntary process wherein the court may advise parties to submit
their case for mediation so that they may be assisted by neutral
party to facilitate their discussions or negotiations towards a
workable solution to the problem. The parties maintain their rights
to proceed to trial if mediation fails. Any settlement that is reached
becomes a judgment of the court.
Refer to Pre-Trial for detailed discussion
3. What is arbitration ?
SUGGESTED ANSWER: The submission of a controversy
for the resolution of a non-judicial third party chosen by the
disputants.
4. What is the mature of arbitration as a mode of
dispute resolution:?
SUGGESTED ANSWER: Arbitration has been held valid
and constitutional. Even before the approval on June 19, 1953 of
Republic Act No. 876, the Supreme Court has countenanced the
 45
settlement of disputes through arbitration. (BF Corporation v. Court
of Appeals, et al., G.R. No. 120105, March 27, 1998)
Republic Act No. 876 was adopted to supplement the New
Civil Code's provisions on arbitration. (Ibid.)
5. What is the nature of the Construction Industry
Arbitration Commission (CIAC) ?
SUGGESTED ANSWER: It is constituted by law as the
quasi-judicial agency accorded with jurisdiction to resolve disputes
arising from contracts involving construction in the Philippines.
[Philippine National Construction Corporation v. Court of Appeals, 512
SCRA 684 (2007)]
6. What issues may the Construction Industry
Arbitration Commission (CIAC) resolve ?
SUGGESTED ANSWER: As an arbitration body, the
Construction Industry Arbitration Commission (CIAC) may only
resolve issues brought before it by the parties through the Terms
of Reference (TOR) which functions similarly as a pre-trial brief.
[Uniwide Sales Realty and Resources Corporation v. Titan-Ikeda
Construction and Development Corporation, 511 SCRA 335 (2006)]
COURT SELECTION
HIERARCHY OF COURTS
1. What is meant by hierarchy of courts ?
SUGGESTED ANSWER: Where there is concurrent
original jurisdiction to issue writs of certiorari, prohibition,
mandamus, quo warranto and habeas corpus, among the
Supreme Court, the Court of Appeals, and the Regional Trial
Courts, the petition should first be filed with the lower court instead
of directly with the higher court. (Pearson, etc., et al., v. Intermediate
Appellate Court, et al., G.R. No. 74454, September 3, 1998)
2. Illustrate the hierarchy of courts.
SUGGESTED ANSWER: A special civil action of certiorari
under Rule 65 is within the concurrent and original jurisdiction of
the Supreme Court and the Court of Appeals hence a petition was
dismissed because it was filed with the Supreme Court.
The doctrine of hierarchy of courts serves as a general
determinant of the proper forum for the availment of the
extraordinary remedies of certiorari, prohibition, mandamus, quo
warranto, and habeas corpus. (Sps. Del Rosario v. Montana, et al.,
G.R. No. 134433, May 28, 2004)
3. What is the rationale for the hierarchy of courts ?
SUGGESTED ANSWER:
a. A becoming regard for that judicial hierarchy most
certainly indicate that petitions for the issuance of extraordinary
writs against first level (inferior) courts should be filed with the
Regional Trial Court, and those against the latter with the Court of
Appeals, and ultimately with the Supreme Court. (Pearson, etc., et
al., v. Intermediate Appellate Court, et al., G.R. No. 74454, September 3,
1998)
b. It is necessary to prevent inordinate demands upon
the Supreme Court's time and attention which are better devoted
to those matters within its exclusive jurisdiction, and to prevent
further over-crowding of the Court's docket. (Fortich, etc., et al., v.
Corona, et al., G.R. No. 131457, April 24, 1998)
4. Are there exceptions to the concept of
hierarchy of courts ?
SUGGESTED ANSWER: Yes. The Supreme Court has full
discretionary powers to take cognizance of the petition filed
directly to it under the following circumstances:
a. If compelling reasons, or the nature and importance of
the issues raised, warrant, or justify direct referral to the Supreme
Court. (Pearson, etc., et al., v. Intermediate Appellate Court, et al., G.R.
No. 74454, September 3, 1998)
b. To avoid future litigations so as to promptly put an
end to a controversy which has sparked national interest because
of the magnitude of the problem created by the issuance of the
assailed resolution of a lower court. (Fortich, etc., et al., v. Corona, et
al., G.R. No. 131457, April 14, 1998)
c. The Supreme Court could resolve to take primary
jurisdiction in the interest of speedy justice. (Eugenio v. Drilon, et al.,
252 SCRA 106, 110)
d. The rule may be relaxed when the redress desired
cannot be obtained in the appropriate courts or where exceptional
and compelling circumstances justify availment of a remedy within
and calling for the exercise of the Supreme Courts decision. (The
Province of Batangas, etc., v. Romulo, etc., et al., G. R. No.
152774, May 27, 2004)
e. Where the transcendental importance of the case
entails the proper and legal interpretation of constitutional and
statutory provisions. (The Province of Batangas, supra)
 46
JURISDICTION IN GENERAL
1. What is jurisdiction ?
SUGGESTED ANSWER: The power of a court to
a. hear,
b. try, and
c. decide a case, as well as to
d. execute its judgment or decision on the matter.
2. What are the kinds of jurisdiction ?
SUGGESTED ANSWER: The different kinds of jurisdiction
are:
a. General and limited or special.
b. Original and appellate.
c. Exclusive and concurrent.
d. Criminal and civil.
e. Territorial.
3. How do courts acquire limited or special jurisdiction
? Explain briefly.
SUGGESTED ANSWER: Similarly with general jurisdiction,
it is the jurisdiction laws which prescribes the parameters of limited
or special jurisdiction.
4. Define exclusive original jurisdiction and give an
example.
SUGGESTED ANSWER: That kind of jurisdiction that could
be exercised by a court to the exclusion of all other courts.
For example, Metropolitan Trial Courts, Municipal Trial
Courts and Municipal Circuit Trial Courts shall exercise Exclusive
original jurisdiction over cases of forcible entry and unlawful
detainer. (Sec. 33 [2], B.P. Blg. 129)
5. Define concurrent jurisdiction. Give an example.
SUGGESTED ANSWER: That type of jurisdiction that may
be exercised by a court together with courts of different levels.
For example, The writ of habeas corpus may be granted by
the Supreme Court, or any member thereof, on any day and at any
time, or by the Court of Appeals or any member thereof in the
instances authorized by law, and if so granted it shall be
enforceable anywhere in the Philippines, and may be made
returnable before the court or any member thereof, or before a
Regional Trial Court, or any judge thereof for hearing and decision
on the merits. It may also be granted by a Regional Trial Court, or
a judge thereof, on any day and at any time, and returnable before
himself, enforceable only within his judicial district. (Sec, 2, Rule
102, ROC)
6. What is territorial jurisdiction of the trial courts ?
SUGGESTED ANSWER:
a. Metropolitan trial courts, municipal trial courts and
municipal circuit trial courts shall exercise their jurisdiction within
the city, municipality or circuit for which the judge thereof is
appointed or designated.
b. A regional trial court shall exercise its jurisdiction
within the area defined by the Supreme Court as the territory over
which the particular branch concerned shall exercise its authority.
(Sec. A.2., Interim Rules, S.C. Res. dated January 11, 1983)
7. How do courts obtain jurisdiction over the
subject matter ?
SUGGESTED ANSWER:
Firstly, there must be a statute that confers jurisdiction over
certain subject matter.
Secondly, the allegations in the complaint which comprise
a concise statement of the ultimate facts constituting the course of
action, then determines whether the specific subject matter would
fall under the jurisdiction conferred by the statute. (Deltaventures
Resources, Inc. v. Hon. Cabato, etc. et al., G.R. No.118216, March 9,
2000)
It is settled that jurisdiction of courts over the subject matter
of the litigation is conferred by law and determined by the
allegations in the complaint. (Que v. Court of Appeals, et al., G.R. No.
135442, August 31, 2000)
8. May a branch of an RTC hear another case
that is pending before another branch ? Reason out your
answer.
SUGGESTED ANSWER: Yes. The various branches of
the Court of First Instance of Cebu (now the Regional Trial Court)
under the Fourteenth Judicial District (now Seventh Judicial
Region), are coordinate and equal courts, and the totality of which
is only one Court of First Instance (Regional Trial Court). The
jurisdiction is vested in the court, not in the judges.
9. In what proceedings and in what stage may
the issue of jurisdiction be raised ?
 47
SUGGESTED ANSWER: The issue of jurisdiction could be
raised only during the proceedings of the case and during the
appeal.
While jurisdiction over the subject matter of a case may be
objected to at any stage of the proceeding even on appeal, this
particular rule, however, means that jurisdictional issues in a case
can be raised only during the proceedings in said case and during
the appeal of said case. (Aragon, etc., et al., v. Court of Appeals,
et al., 270 SCRA 603)
NOTE: You could use the comment of Justice Moran, who
said that, A decision rendered without jurisdiction is like an outlaw
who may be shot at anytime he shows his ugly head. In short,
issue of subject matter jurisdiction maybe raised at anytime.
10. How is the jurisdiction of the four (4) lower trial
courts classified ?
SUGGESTED ANSWER:
a. Exclusive original jurisdiction
b. Delegated jurisdiction.
c. Special jurisdiction.
10. What is the exclusive original jurisdiction of
the four (4) lower trial courts in civil cases under the
Expanded Jurisdiction Law (R.A. No. 7691) ?
a. Exclusive original jurisdiction over civil actions and
probate proceedings, testate and intestate including grant of
provisional remedies in proper cases, where the value of the
personal property, estate, or amount of the demand
1) Does not exceed Three Hundred Thousand pesos
(P300,000.00), or
2) In Metro Manila where such personal property,
estate, or amount of the demand does not exceed Four
Hundred Thousand pesos (P400,000.00),exclusive of
interest, damages of whatever kind, attorney's fees,
litigation expenses and costs, the amount of which must be
specifically alleged, Provided, that interest, damages of
whatever kind, attorney's fees, litigation expenses, and
costs shall be included in the determination of the filing
fees.
b. Exclusive original jurisdiction over cases of forcible
entry and unlawful detainer: Provided, that when, in such cases,
the defendant raises the question of ownership in his pleadings
and the question of possession cannot be resolved without
deciding the issue of ownership, the issue of ownership shall be
resolved only to determine the issue of possession; and
c. Exclusive original jurisdiction in all civil actions which
involve title to or possession of real property, or any interest
therein where the assessed value of the property or interest
therein:
1) Does not exceed Twenty Thousand pesos
(P20,000.00), or
2) In Metro Manila, where such assessed value
does not exceed Fifty Thousand pesos (P50,000.00)
exclusive of interest, damages of whatever kind, attorney's
fees, litigation expenses and costs: Provided, that in cases
of land not declared for taxation purposes the value of such
property shall be determined by the assessed value of the
adjacent lots. (Sec. 33, B.P. Blg. 129, as amended by R.A. No.
7691)
11. Are there instances where the four (4) lower trial
courts would have jurisdiction even if the amounts exceed
P300,000 .00 and P400,000.00 ?
SUGGESTED ANSWER:
a. Unlawful detainer cases where the unpaid rentals
claimed exceeds P300,000.00 for courts outside of Metro Manila
and P400,000.00 for courts within Metro Manila.
b. Claims for interest, damages of whatever kind,
attorney's fees, litigation expenses and costs which exceeds
P300,000.00 for courts outside of Metro Manila and P400,000.00
for courts within Metro Manila.
c. Civil cases brought together with criminal cases
12. A brought against B an action for
detainer to recover the possession of a building and rents
due and unpaid amounting to P500,000.00. B moved for the
dismissal of the action on the ground that the Municipal Trial
Court had no jurisdiction over its case, for the amount of
rents sought to be recovered was over P300,000.00. If you
were the judge how would you decide the motion of B ?
State the reasons for your answer ?
. SUGGESTED ANSWER: Motion denied. The jurisdiction
of MTCs in unlawful detainer cases is not limited by the amount of
unpaid rentals.
13. For failure of the tenant, X, to pay rentals,
A, the court-appointed administrator of the estate of Henry

Datu, decides to file an action against the former for the
recovery of possession of the leased premises located in
Danao City and for the payment of the accrued rentals in the
total amount of P500,000.00.
Supposing that A filed the complaint in the MTCC, and
X filed an Answer wherein he interposed a counterclaim for
moral damages in the amount of P450,000.00 for the alleged
malicious act of filing an unwarranted unlawful detainer case ,
would the MTCC have jurisdiction over the counterclaim, or
can he file a separate action to recover the damages ?
SUGGESTED ANSWER: The MTCC does not have
jurisdiction because the amount exceeds P300,000.00. He can
file a separate claim because the alleged claim is not a
compulsory counterclaim the reason being that it is outside of the
jurisdiction of the MTCC.
Can A file a counterclaim to the counterclaim ?
SUGGESTED ANSWER: A counterclaim may asserted
against an original counter-claimant. (1st sentence, Sec. 9, Rule 6,
ROC)
14. What do you understand by the totality
rule in determining the jurisdiction of courts in civil cases ?
SUGGESTED ANSWER: The totality rule which is
applicable only to the four (4) lower trial courts (the Municipal Trial
Court, the Municipal Circuit Trial Court, the Municipal Trial Court in
Cities, and the Metropolitan Trial Court) states that:
a. Where there are several claims or causes of actions
b. between the same or different parties,
c. embodied in the same complaint,
d. the amount of the demand shall be the totality of the
claims in all the causes of action
e. irrespective of whether the causes of action arose out
of the same or different transactions. (par. 1, Sec. 33, B. P. Blg. 129,
arrangement and numbering supplied)
The rule on joinder of causes of action and joinder of parties
should be applied.
15. P sued A and B in one complaint in the RTC
Manila, the cause of action against A being on an overdue
promissory note of P300,000.00 and that against B being on
an alleged balance of P300,000.00 on the purchase price of
goods sold on credit. Does the RTC-Manila have jurisdiction
over the case ? Explain.
48
SUGGESTED ANSWER: No. The rules on joinder of
parties limits the application of the totality rule which would allow
the joinder of the two causes of action to a total of P600,000.00
thus falling within the jurisdiction of the RTC.
The parties A and B could not be joined in one complaint
because the right to relief against them do not arise out of the
same contract, transaction or series of transactions. Furthermore,
there is no question of law or fact common to A and B.
Consequently, separate complaints would have to be filed
before the Metropolitan Trial Court.
16. What is the nature of the jurisdiction of the
four (4) lower trial courts over unlawful detainer and forcible
entry cases ?
SUGGESTED ANSWER: The four (4) lower trial courts (the
Municipal Trial Court, the Municipal Circuit Trial Court, the
Municipal Trial Court in Cities, and the Metropolitan Trial Court)
shall have Exclusive original jurisdiction over cases of forcible
entry and unlawful detainer: Provided, that when, in such cases,
the defendant raises the question of ownership in his pleadings
and the question of possession cannot be resolved without
deciding the issue of ownership, the issue of ownership shall be
resolved only to determine the issue of possession. [Sec. 33 (b), B.
P. Blg. 129]
17. What pleading determines whether a court
has jurisdiction over the subject matter ? Explain briefly.
SUGGESTED ANSWER: The jurisdiction of a court over
the subject matter of the action is determined by the material
allegations of the complaint and the law, irrespective of whether
the plaintiff is entitled to recover all or some of the claims or reliefs
sought therein. (Salmorin v. Zaldivar, G.R. No. 169691, July 23, 2008
citing Heirs of Magpily v. De Jesus, G.R. No. 167748, 8 November 2005,
474 SCRA 366, 372 in turn citing Sumawang v. De Guzman, G.R. No.
150106, 8 September 2004, 437 SCRA 622, 627)
Thus, the complaint concerned the unlawful detainer by
defendant of the subject lot situates the matter properly within the
jurisdiction of the regular courts.
18. Are the allegations in the answer determinative of
subject matter jurisdiction ? Why ?
SUGGESTED ANSWER: No. The allegations of an
answer does not determine jurisdiction. The jurisdiction of the
court over the nature of the action and the subject matter thereof
cannot be made to depend upon the defenses set up in the court
 49
or upon a motion to dismiss. Otherwise, the question of jurisdiction
would depend almost entirely on the defendant. (Salmorin v.
Zaldivar, G.R. No. 169691, July 23, 2008 citing Hilado et al. v.
Chavez et al., G.R. No. 134742, 22 September 2004, 438 SCRA
623, 641)
19. Distinguish between the jurisdiction of the
DARAB and the MTC over possession of real property.
SUGGESTED ANSWER: The Department of Agrarian
Reform Adjudication Board (DARAB) has primary and exclusive
jurisdiction over agrarian related cases, i.e., rights and obligations
of persons, whether natural or juridical, engaged in the
management, cultivation and use of all agricultural lands covered
by the Comprehensive Agrarian Reform Law and other related
agrarian laws, or those cases involving the ejectment and
dispossession of tenants and/or leaseholders WHILE exclusive
original jurisdiction over cases of forcible entry and unlawful
detainer is lodged with the metropolitan trial courts, municipal trial
courts and MCTCs. (Salmorin v. Zaldivar, G.R. No. 169691, July 23,
2008)
20. What is the delegated jurisdiction of the
four (4) lower trial courts in cadastral and land registration
cases ?
SUGGESTED ANSWER:
a. Metropolitan Trial Courts, Municipal Trial Courts,
Municipal Circuit Trial Courts, Municipal Trial Courts in cities.
b. may be assigned by the Supreme Court to hear and
determine cadastral or land registration cases
c. covering lots
1) where there is no controversy or opposition, or
2) contested lots where the value of which do not
exceed One hundred thousand pesos (P100,000.00), such
value to be ascertained
a) by the affidavit of the claimant, or
b) by agreement of the respective claimants if
there are more than one, or
c) from the corresponding tax declaration
of the real property. (Sec. 34, B.P. Blg. 129, as
amended by R.A. No. 7691, arrangement and numbering
supplied)
NOTES: Decisions of Metropolitan Trial Courts, Municipal
Trial Courts, Municipal Circuit Trial Courts and Municipal Trial
Courts in cities in exercise of their delegated jurisdiction shall be
appealable in the same manner as decisions of the Regional Trial
Courts. (Sec. 34, B.P. Blg. 129, as amended by R.A. No. 7691)
21. What is the special jurisdiction of the four
(4) lower trial courts in certain cases ?
SUGGESTED ANSWER:
a. In the absence of the Regional Trial Judges in a
province or city,
b. any Metropolitan Trial Judge, Municipal Trial Judge,
Municipal Circuit Trial Judge,
c. may hear and decide petitions for a writ of habeas
corpus or application for bail in criminal cases in the province or
city where the absent Regional Trial Court Judges sits. (Sec. 35,
B.P. Blg. 129, arrangement and numbering supplied)
22. What is the exclusive original jurisdiction of
Regional Trial Courts in civil cases ?
SUGGESTED ANSWER: "Regional Trial Courts shall
exercise exclusive original jurisdiction:
(1) In all civil actions in which the subject of the litigation
is incapable of pecuniary estimation;
(2) In all civil actions which involve the title to, or
possession of, real property, or any interest therein, where the
assessed value of the property involved exceeds Twenty
Thousand pesos (P20,000.00) or, for civil actions in Metro Manila,
where such value exceeds Fifty thousand pesos (P50,000.00)
except actions for forcible entry into and unlawful detainer of lands
or buildings, original jurisdiction of which is conferred upon the
Metropolitan Trial Courts, Municipal Trial Courts, Municipal Circuit
Trial Courts;
(3) In all actions in admiralty and maritime jurisdiction
where the demand or claim exceeds Three hundred thousand
pesos (P300,000.00) or, in Metro Manila, where such demand or
claim exceeds Four hundred thousand (P400,000.00);
(4) In all matters of probate, both testate and intestate,
where the gross value of the estate exceeds Two hundred
thousand pesos (P200,000.00) or, in probate matters in Metro
Manila, where such gross value exceeds Four hundred thousand
pesos (P400,000.00);
(5) In all actions involving the contract of marriage and
marital relations;
(6) In all cases not within the exclusive jurisdiction of any
court, tribunal, person or body exercising jurisdiction of any court,
 50
tribunal, person or body exercising jurisdiction of any court,
tribunal, person or body exercising judicial or quasi-judicial;
(7) In all civil actions, special proceedings falling within
the exclusive jurisdiction of a Juvenile and Domestic Relations
Court and of the Court of Agrarian Relations as now provided by
law; and
(8) In all other cases in which the demand, exclusive of
interest, damages of whatever kind, attorney's fees, litigation
expenses, and costs or the value of the property in controversy
exceeds Two hundred thousand (P200,000.00) or, in such other
cases in Metro Manila where the demand, exclusive of the
abovementioned items exceeds Four hundred thousand pesos
(P400,000.00). (Sec. 19, B.P. Blg. 129 as amended by as amended by
R.A. No. 7691)
23. May Regional Trial Courts hear cases involving
constitutional issues ?
SUGGESTED ANSWER: Yes, Regional Trial Courts are
vested with authority and jurisdiction to consider constitutional
issues.
The constitution vests the power of judicial review or the
power to declare a law, treaty, international or executive
agreement, presidential decree, order, instruction, ordinance or
regulation; not only in the Supreme Court, but in all Regional Trial
Courts.
Furthermore, B.P. Blg. 129 grants Regional Trial Courts the
authority to rule on the conformity of laws or treaties with the
Constitution, when it was empowered to exercise exclusive
original jurisdiction in all civil actions in which the subject of the
litigations is incapable of pecuniary estimation. (Mirasol v. Court of
Appeals, G.R. No. 128448, February 1, 2001)
24. What are the requisites for courts to consider
constitutional issues?
SUGGESTED ANSWER:
a. There must be before the court an actual case calling
for the exercise of judicial review.
b. The question before the court must be ripe for judicial
determination.
c. The person challenging the validity of the act must
have standing to challenge.
d. The question of constitutionality must have been
raised at the earliest opportunity.
5. The issue of constitutionality must be the very lis
mota of the case. (Mirasol v. Court of Appeals, G.R. No. 128448,
February 1, 2001)
25. What is the criteria for determining whether
the subject matter is or is not an action not capable of
pecuniary estimation ?
SUGGESTED ANSWER: The following criteria are used:
a. Nature of the principal action or remedy test. If it
is primarily for the recovery of a sum of money, the claim is
considered capable of pecuniary estimation, and whether
jurisdiction is in the municipal courts or in the regional trial courts
would depend on the amount of the claim.
b. Ultimate objective test.
1) Where the basic issue is something other than
the right to recover a sum of money, or
2) where the money claim is purely incidental to,
or a consequence of, the principal relief sought, like in suits
to have the defendant perform his part of the contract
(specific performance) and in actions for support, or for
annulment of a judgment or to foreclose a mortgage, such
actions are cases where the subject of the litigation may not
be estimated in terms of money, and are cognizable
exclusively by regional trial courts. (Spouses de Leon v. Court
of Appeals, et al., G.R. No. 104796, March 6, 1998; Barangay San
Roque, Talisay, Cebu v. Heirs of Francisco Pastor, et al., G.R. No.
138896, June 20, 2000)
26. Give examples of actions not capable of
pecuniary estimation where the ultimate objective is not
recovery of money, recovery being merely incidental.
SUGGESTED ANSWER:
a. Action for rescission of contract even if it
includes an amount of damages, one not capable of
pecuniary estimation. Reason: The court would certainly have to
undertake an investigation into facts that would justify one act or
the other. No award of damages may be had in an action for
rescission without first conducting an inquiry into matters which
would justify the setting aside of a contract, in the same manner
that regional trial courts would have to make findings of fact and
law in actions in other cases not capable of pecuniary estimation.
Rescission: Issues of the same nature may be raised by a
party against whom an action for rescission has been brought, or
by the plaintiff himself. It is difficult to see why a prayer for
damages in an action for rescission should be taken as the basis
 51
for concluding such action as one capable of pecuniary estimation
- a prayer which must be included in the main action if the plaintiff
is to be compensated for what he may have suffered as a result of
the breach committed by the defendant, and not later on precluded
from recovering damages by the rule against splitting a cause of
action and discouraging multiplicity of suits. (Lapitan v. Scandia,
Inc., 24 SCRA 479)
b. Annulment of deed of sale and recovery of price
paid. Action relative to the legality or illegality of the conveyance
sought for and the determination of the validity of the money
deposit made. (Arroz v. Alohado, et al., L-22153, March 31, 1967)
c. Action contesting the validity of a judgment. (De
Ursua v. Pelayo, L-13285, April 18, 1950)
d. Action relative to the validity of a mortgage.
(Bunayog v. Tunas, L-12707, December 23, 1959)
e. Action concerning the relations of the parties,
the right to support created by the relation, etc., in actions for
support. (Baito v. Sarmiento, L-13105, August 25, 1960)
f. Action where the issue is the validity or nullity of
documents upon which claims are predicated. (De Rivera, et al.,
v. Halili, L-15159, September 30, 1963) The claim may be for a sum
of money but it is still one that is not subject of pecuniary
estimation.
g. An action for declaration of nullity of partition.
(Russel v. Vestil, G. R. No. 119347, March 17, 1999)
27. Give examples of actions capable of
pecuniary estimation.
SUGGESTED ANSWER:
a. If amount is in the alternative cause of action is
within the jurisdiction of the Metropolitan Trial Court,
Municipal Trial Court, Municipal Circuit Trial Court; it should be
brought in those courts. Inclusion of the alternative claim which is
not subject to pecuniary estimation does not vest jurisdiction with
the Regional Trial Court. (Cruz v. Tan, 87 Phil. 627)
b. Actions for replevin. An action for replevin of
personal property is one that is capable of pecuniary estimation
because the court shall render judgment in the alternative for
the delivery thereof, or for the its value in case delivery
cannot be made. (Sec. 9, Rule 60, ROC)
c. Actions for interpleader. The subject matter is
usually money. Even if the subject matter is property it would still
be the subject of pecuniary estimation because the value of the
property would have to be considered.
28. What courts have jurisdiction over the following
cases filed in Metro Manila ?
a. An action for specific performance or, in the
alternative for damages in the amount of P350,000.00.
b. An action for a writ of injunction;
c. An action for replevin of a motor cycle valued at
P300,000.00;
d. An action for interpleader to determine who
between the defendants is entitled to receive the amount of
P380,000.00 from the plaintiff;
e. A petition for the probate of a will involving an
estate valued at P400,000.00.
SUGGESTED ANSWERS:
a. The Metropolitan Trial Court. In alternative causes of
action it is the claim for sum of money which determines
jurisdiction. The amount sought to be recovered falls within the
jurisdiction of the Metropolitan Trial Court.
b. The Regional Trial Court as an action for a writ of
injunction is one that is not subject to pecuniary estimation.
c. The Metropolitan Trial Court because the subject
matter of the suit which is a motor cycle is one that is subject of
pecuniary estimation.
d. and e. The Metropolitan Trial Court because the
amount of P380,000.00 falls within the jurisdictional ambit of
P400,000.00 for courts within Metro Manila.
29. What is the jurisdiction of the Regional Trial
Courts to try special cases ?
SUGGESTED ANSWER: "The Supreme Court may
designate certain branches of the Regional Trial Courts to handle
exclusively criminal cases, juvenile and domestic relations cases,
agrarian cases, urban land reform cases which do not fall under
the jurisdiction of quasi-judicial bodies and agencies and/or such
other special cases as the Supreme Court may determine in the
interest of a speedy and efficient administration of justice." (Sec.
23, B. P. Blg. 129)
Agrarian cases. Special Agrarian Courts which are
Regional Trial Courts, are given original and exclusive jurisdiction
over two categories of cases, to wit: (1) all petitions for the
determination of just compensation to landowners' and (2) 'he
prosecution of all criminal offenses under [R.A. No. 6657]. The
provision of Section 50 must be construed in harmony with this
provision by considering cases involving the determination of just
compensation and criminal cases for violations of R.A. No. 6657
 52
as excepted from the plenitude of power conferred on the DAR.
Indeed, there is reason for this distinction. The DAR is an
administrative agency which cannot be granted jurisdiction over
cases of eminent domain (for such are taking [sic] under R.A. No.
6657 and over criminal cases. Thus, in EPZA v. Dulay and
Sunulong v. Guerrero, it was held that the valuation of property in
eminent domain is essentially a judicial function which cannot be
vested in administrative agencies, while in Scotys Department
Store v. Micaller, the Supreme Court struck down a law granting
the then Court of Industrial Relations jurisdiction to try criminal
cases for violations of the Industrial Peace Act.
It would subvert the original and exclusive jurisdiction of
the RTC [Regional Trial Court] for the Department of Agrarian
Reform to vest original jurisdiction in compensation cases in
administrative officials and make the RTC an appellate court for
the review of administrative decisions.
What [agrarian] adjudicators are empowered to do is only to
determine in a preliminary manner the reasonable compensation
to be paid to landowners, leaving to the courts the ultimate power
to decide the question. (Escano, Jr., et al., v. Court of Appeals, et al.,
G.R. No. 101932, January 24, 2000)
Complaints for overcharging of electric rates. The Regional
Trial Court is a court of general jurisdiction. On the other hand,
Republic Act No. 6173, as amended by Presidential Decree No.
1206 empowered the ERB to regulate and fix the power rates to
be charged by electric companies. The power to fix rates of
electric consumption does not carry with it the power to determine
whether or not petitioner is guilty of overcharging customers for
consumption of electric power. This falls within the jurisdiction of
the regular courts.
The question of determining the breakdown and itemization
of the power adjustment billed by an electric power company to its
customers is not a matter that pertains to the ERBs supervision,
control or jurisdiction to regulate and fix power rate but falls within
the jurisdiction of the regular courts. (Cagayan Electric Power and
Light Company, Inc. v. Collera , et al., G.R. No. 102184, April 12, 2000)
Example: Regular courts would have jurisdiction where the
complaint only alleged that Cagayan Electric Power and Light
Company, Inc. (a public utility company) charged the full rate of
electric consumption despite absence of any increases in the cost
of energy. If the public utility company used the deposits,
discounts, surcharges, power cost adjustment (PCA) and the
currency exchange rate adjustment (CERA) rates as instruments
to obtain undue profits through various loan activities and benefits
provided to its employees, then the cause of action against the
public utility may have to be litigated before the regular courts.
(Cagayan Electric Power and Light Company, Inc. v. Collera, et al., G.R.
No. 102 184, April 12, 2000)
Violation of the Omnibus Electric Code. Under Sec. 268 of
the Omnibus Electric Code, RTCs have exclusive jurisdiction to
try and decide any criminal action or proceeding for violation of the
Code, except those relating to the offense of failure to register or
failure to vote. This is so even if the penalty does not exceed six
years. It is evident from Sec. 32, BP 129, as amended by Sec. 2
of RA 7691, that the jurisdiction of first-level courts, does not cover
those criminal cases which by specific provision of law are
cognizable by the RTC. (Juan, et al., v People, G.R. No. 132378,
January 18, 2000)
Location of boundary lines. The Regional Trial Court has
jurisdiction to determine the precise identity and location of a
vacant lot. After the land has been originally registered , the Court
of Land Registration ceases to nave jurisdiction over contests
concerning the location of boundary lines. In such case, the action
in personam has to be instituted before an ordinary court of
general jurisdiction. (Ceroferr Realty Corporation v. Court of Appeals,
et al., G.R. No. 139539, February 5, 2002)
30. Over what civil cases, special civil actions
and special proceedings cases do Family Courts exercise
exclusive original jurisdiction ?
SUGGESTED ANSWER:
a. Petitions for guardianship, custody of children,
habeas corpus in relation to the latter;
b. Petitions for adoption of children and the revocation
thereof;
c. Complaints for annulment of marriage, declaration of
nullity of marriage and those relating to marital status and property
relations of husband and wife or those living together under
different status and agreements, and petitions for dissolution of
conjugal partnership of gains;
d. Petition for support and/or acknowledgment;
e. Summary judicial proceedings brought under the
provisions of Executive Order No. 209, otherwise known as the
Family Code of the Philippines;
f. Petitions for declaration of status of children as
abandoned, dependent or neglected children, petitions for
voluntary and involuntary commitment of children; the suspension,
termination, or restoration of parental authority and other cases
cognizable under Presidential Decree No. 603, Executive Order
No. 56, series of 1986, and other related laws;
 53
g. Petitions for constitution of the family home.
31. How should the records of child and family
cases in the Family Courts or Regional Trial Courts be
designated by the Supreme Court to handle Family Court
cases be treated and dealt with ?
SUGGESTED ANSWER: They shall be dealt with utmost
confidentiality. (Sec. 12, Rep. Act No. 8369)
32. Under what conditions may the identity of
parties in child and family cases be divulged ?
SUGGESTED ANSWER: On the grounds of necessity and
with authority of the judge.
33. Define the jurisdiction of the Court of
Appeals.
SUGGESTED ANSWER: The Court of Appeals shall
exercise:
(1) Original jurisdiction to issue writs of mandamus,
prohibition, certiorari, habeas corpus, and quo warranto, and
auxiliary writs or processes, whether or not in aid of its appellate
jurisdiction;
(2) Exclusive original jurisdiction over actions for
annulment of judgments of Regional Trial courts; and
(3) Exclusive appellate jurisdiction over all final
judgments, decisions, resolutions, orders or awards of Regional
Trial Courts and quasi-judicial agencies, instrumentalities, boards
or commissions, including the Securities and Exchange
Commission, the Social Security Commission, the Employees
Compensation Commission, except those falling within the
appellate jurisdiction of the Supreme Court in accordance with the
Constitution, the Labor Code of the Philippines under Presidential
Decree No. 442, as amended, the provisions of this Act, and of
subparagraph (1)of the third paragraph and subparagraph 4 of the
fourth paragraph of Section 17 of the Judiciary Act of 1948.
The Court of Appeals shall have the power to try cases and
conduct hearings, receive evidence and perform any and all acts
necessary to resolve factual issues raised in cases falling within its
original and appellate jurisdiction, including the power to grant and
conduct new trials or further proceedings. Trials or hearings in the
Court of Appeals must be continuous and must be completed
within three (3)months, unless extended by the Chief Justice.
(Sec. 9, Chapter I, B.P. Blg. 129, as amended by Rep. Act No. 7902)
34. Define the jurisdiction of the Supreme Court.
SUGGESTED ANSWER: The constitutional jurisdiction of
the Supreme Court is:
(1) Exercise original jurisdiction over cases affecting
ambassadors, other public ministers, and consuls, and over
petitions for certiorari, prohibition, mandamus, quo warranto, and
habeas corpus,
(2) Review, revise, reverse, modify, or affirm on appeal
or certiorari as the law or the Rules of Court may provide, final
judgments and orders of lower courts in:
(a) All cases in which the constitutionality or
validity of any treaty, international or executive agreement,
law, presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question.
(b) All cases involving the legality of any tax,
impost, assessment, or toll or any penalty imposed in
relation thereto.
(c) All cases in which the jurisdiction of any lower
court is in issue.
(d) All criminal cases in which the penalty imposed
is reclusion perpetua or higher.
(e) All cases in which only an error or question of
law is involved. (Sec. 5, Article VIII, Philippine Constitution)
VENUE
1. Define venue.
SUGGESTED ANSWER: Venue is the place of trial or
geographical location in which an action or proceeding may be
brought. (Manila Railroad Co., v. Attorney General, 20 Phil. 523, 588)
Venue is the same for the Regional, Metropolitan and
Municipal Trial Courts. (Rule 5 in relation to Rule 4, ROC)
2. Distinguish Jurisdiction FROM venue.
SUGGESTED ANSWER:
. a. Venue is procedural and may be waived WHILE
jurisdiction over the subject matter cannot be waived.
b. Venue is fixed by statute or agreement WHILE
jurisdiction over the subject matter is conferred only by law and not
by agreement of the parties.
c. Provisions relating to venue establish a relation
between the plaintiff and the court WHILE provisions on
jurisdiction establish a relation between the court and the subject
matter.
 54
8. Where is the venue of personal actions ?
3. State fully the rules on venue in inferior SUGGESTED ANSWER: Personal actions may be
courts regarding real actions. commenced and tried
SUGGESTED ANSWER: a. where the plaintiff or any of the principal plaintiffs
a. Actions affecting title to or possession of real property resides, or
or interest therein, b. where the defendant or any of the principal
b. shall be commenced and tried in the proper court defendants resides, or
c. which has jurisdiction over the area wherein the real c. in the case of a non-resident defendant where he
property involved, or a portion thereof, is situated. may be found at the election of the plaintiff. (Sec. 2, Rule 4, ROC
d. Forcible entry and detainer actions shall be arrangement and numbering supplied)
commenced and tried in the municipal trial court of the municipality The last choice of where the defendant may be found is
or city wherein the real property involved, or a portion thereof is available only where the defendant is a non-resident of the
situated. (Sec. 1, Rule 4, ROC arrangement and numbering supplied) Philippines.

4. Where is the proper venue of foreclosure 9. Where is the venue of actions against
proceedings of a mortgage of several parcels of land situated nonresidents ?
in different provinces ? SUGGESTED ANSWER:
SUGGESTED ANSWER: The proper venue is the proper a. If any of the defendants does not reside and is not
court which has jurisdiction over the area wherein the real property found in the Philippines,
involved, or a portion thereof, is situated. (Sec. 1, Rule 4, ROC words b. and the action affects
not in bold supplied) 1) the personal status of the plaintiff, or
2) any property of said defendant in the
5. Where is the venue of partition or Philippines,
foreclosure of mortgage of real property or other real actions c. the action may be commenced and tried in the court
? of the place
SUGGESTED ANSWER: Actions affecting title to or 1) where the plaintiff resides, or
possession of real property or interest therein, such as partition or 2) where the property or any portion thereof is
foreclosure of mortgage of real property or other real actions, shall situated or is found. (Sec. 3, Rule 4, ROC arrangement and
be commenced and tried in the proper court which has jurisdiction numbering supplied)
over the area wherein the real property involved, or a portion The venue of personal actions by a non-resident plaintiff
thereof, is situated. (Sec. 1, Rule 4, ROC words not in bold supplied) against a resident defendant is where the defendant may be
summoned and his property leviable upon execution in case of
6. May a Regional Trial Court try a real action favorable, final and executory judgment. (King Mau Wi v. Sycip, G.R.
involving real property in another territory ? No. L-5897, April 23, 1954) In short, where the Philippine resident
SUGGESTED ANSWER: Yes, if not properly objected to lives or resides. (Corre v. Corre, G.R. No. L-10128, XXI L.J. 542)
whether in a motion to dismiss or in the answer.
10. In 2003, X an employee of NHA and a
7. Where shall forcible entry and detainer resident of Cavite was awarded a lot in Quezon City. X retired
actions regarding real property be brought ? in 2005. He paid the purchase price of the lot awarded to him
SUGGESTED ANSWER: Forcible entry and detainer with a check in 2007 but his check was returned with the
actions shall be commenced and tried in the municipal trial court of advice that the award made in his favor was cancelled. X filed
the municipality or city wherein the real property involved, or a a complaint in the Regional Trial Court of the Fourth Judicial
portion thereof is situated. (Sec. 1, Rule 4, ROC) Region with seat at Cavite for the annulment of the
cancellation of the award made in his favor. The Regional
 55
Trial Court dismissed the complaint on the ground of
improper venue. Was the dismissal proper ? Reason.
SUGGESTED ANSWER: No. The dismissal was not
proper. The action is a personal action (Hernandez v.
Development Bank of the Philippines, 71 SCRA 290) which may
be brought where the plaintiff X resides which is Cavite or in the
place where NHA has its principal office, the option being left to
the plaintiff, in this case X.
The choice made by X of instituting the suit in the place
where he resides is in accord with law.
11. For purposes of venue, where is the
residence of a person?
SUGGESTED ANSWER: The residence of a person must
be his personal, actual or physical habitation or his actual
residence or abode. It does not mean fixed permanent residence
to which when absent, one has the intention of returning.
For purposes of venue, actual residence signifies personal
residence, i.e. physical presence and actual stay thereat. This
physical presence, nonetheless, must be more than temporary
and must be with continuity and consistency. (Baritua v. Court of
Appeals, et al., 267 SCRA 331,335-336)
12. What are the instances where the rules on
venue are not applicable ?
SUGGESTED ANSWER:
a. In those cases where a specific rule or law provides
otherwise; or
b. Where the parties have validly agreed in writing
before the filing of the action on the exclusive venue thereof. (Sec.
4, Rule 4, ROC, arrangement and numbering supplied)
15. State the instances where a specific rule
provide for a venue other than that under Rule 4.
SUGGESTED ANSWER:
a. Venue for the settlement of the estate of
deceased persons. If the decedent is an inhabitant of the
Philippines at the time of his death, whether a citizen or an alien,
his will shall be proved, or letters of administration granted, and his
estate settled in the Regional Trial Court in the province in which
he resides at the time of his death, and if he is an inhabitant of a
foreign country, in the Regional Trial Court of any province which
he had estate. (1st sentence, Sec. 1, Rule 73, ROC)
b. Escheat proceedings. When a person dies
intestate, seized of real or personal property in the Philippines,
leaving no heir or person by law entitled to the same, the Solicitor
General or his representative in behalf of the Republic of the
Philippines, may file a petition in the Regional Trial Court of the
province where the deceased last resided or in which he had
estate, if he resided out of the Philippines. (Sec. 1, Rule 91, Ibid.)
c. Guardianship proceedings. Guardianship of the
person or estate of a minor or incompetent may be instituted in the
Regional Trial Court of the province, or in the justice of the peace
court of the municipality (now the municipal trial court, municipal
circuit trial court) or in the municipal court of the chartered city
(now in certain instances, the metropolitan trial court) where the
minor or incompetent resides, and if he resides in a foreign
country, in the Regional Trial Court of the province wherein his
property or part thereof is situated. (Sec. 1, Rule 92, ROC words in
parentheses supplied)
The court taking cognizance of a guardianship proceeding,
may transfer the same to the court of another province or
municipality wherein the ward has acquired real property, if he has
transferred thereto his bona-fide residence. (Sec. 3, Ibid.)
d. Adoption and custody of minors. A person desiring
to adopt another or have the custody of a minor shall present his
petition to the Regional Trial Court of the province, or the city or
municipal court of the city or municipality in which he resides.
(Sec. 1, Rule 99, ROC)
e. Proceedings for hospitalization of insane
persons. A petition for the commitment of a person to a hospital
or other place for the insane may be filed with the Regional Trial
Court of the province where the person alleged to be insane is
found. (1st sentence, Sec. 1, Rule 101, Ibid.)
f. Change of name. A person desiring to change his
name shall present the petition to the Regional Trial Court of the
province in which he resides. (Sec. 1, Rule 103, Ibid.)
g. Voluntary dissolution of corporations. A petition
for dissolution of a corporation shall be filed in the Regional Trial
Court of the province where the principal office of a corporation is
situated. (1st sentence, Sec. 1, Rule 104, ROC)
h. Judicial approval of voluntary recognition of
minor natural children. Where judicial approval of a voluntary
recognition of a minor natural child is required, such child or his
parents shall obtain the same by filing a petition to that effect with
the Regional Trial Court of the province in which the child resides.
(Sec. 1, Rule 105, Ibid.)
 56
i. Constitution of family home. The head of a family
owning a house and the land on which it is situated may constitute
the same into a family home by filing a verified petition to that
effect with the Regional Trial Court of the province or city where
the property is located. (Sec. 1, Rule 106, Ibid.)
j. Appointment of absentee's representative. When
a person disappears from his domicile, his whereabouts being
unknown, and without having left an agent to administer his
property, or the power conferred upon the agent has expired, any
interested party, relative or friend, may petition the Regional Trail
Court of the place where the absentee resided before his
disappearance, for the appointment of a person to represent him
provisionally in all that may be necessary. (Sec. 1, Rule 107, Ibid.)
k. Cancellation or correction of entries in the Civil
Registry Any person interested in any act, event, order or decree
concerning the civil status of persons which has been recorded in
the civil register, may file a verified petition for the cancellation or
correction of any entry relating thereto, with the Regional Trial
Court of the province where the corresponding civil registry is
located. (Sec. 1, Rule 108, Ibid.)
l. Petition for deposition before action. In the court
of the place of the residence of any expected adverse party. (Sec.
1, Rule 24, Ibid.)
m. Declaration of absolute nullity of void marriages
and annulment of voidable marriages. The petition shall be filed
in the Family Court of the province or city where the petitioner or
the respondent has been residing for at least six months prior to
the date of filing, or in the case of a non-resident respondent,
where he may be found in the Philippines, at the election of the
petitioner. (Sec. 4, A.M. No. 02-11-10-SC, Rule on Declaration of Nullity
of Void Marriages and Annulment of Voidable Marriages)
n. Petition for legal separation. The petition shall be filed
in the Family Court of the province or city where the petitioner or
the respondent has been residing for at least six (6) months prior
to the date of filing or in the case of non-resident respondent,
where he may be found in the Philippines, at the election of the
petitioner. [Sec. 2 (c), A.M. No. 02-11-11-SC, Rule on Legal Separation]
13. What are the requirements for mandatory
or restrictive agreement by the parties to be determinative of
venue ?
. SUGGESTED ANSWER: Where the parties have
a. validly agreed in writing
b. before the filing of the action
c. on the exclusive venue thereof. (Sec. 4 [b], Rule 4,
ROC arrangement and numbering supplied)
d. The waiver must not be contrary to public policy or
prejudicial to third persons. (Unimasters Conglomeration, Inc. v. Court
of Appeals, et al., 267 SCRA 759,767)
e. These agreements are usually characterized by the
use of restrictive or limiting words like, "only," solely," "exclusively,"
"alone," "limited to," "in no other place," "to the exclusion of," and
other terms indicative of a clear and categorical intent to lay the
venue at a specific place and thereby waiving the general
provisions of the Rules or the law on venue or proscribing the filing
of suit in any other competent court. (concurring opinion of Justice
Regalado in Unimasters Conglomeration, Inc. v. Court of Appeals, et al.,
267 SCRA 759,781)
14. Give some examples of mandatory or
restrictive agreements on venue.
SUGGESTED ANSWER:
a. A stipulation that if the lessor violated the contract of
lease he could be sued in Manila, while if it was the lessee who
violated the contract, the lessee could be sued in Masantol,
Pampanga. REASON: There was an agreement concerning
venue of action and the parties are bound by such mandatory
agreement. (Villanueva v. Mosqueda, 115 SCRA 904)
b. A condition that - any action against RCPI relative to
the transmittal of a telegram must be brought to the courts of
Quezon City alone - was printed clearly in the upper from portion
of the form to be filled in by the sender. REASON: That neither
party reserved the right to choose the venue of action as fixed in
Section 2, Rule 4, as is usually done if the parties mean to retain
the right of election so granted by Rule 4 can be drawn the
reasonable inference that the parties intended to definitely fix the
venue of action, in connection with the written contract sued upon,
in the courts of Quezon City only. (Arguero v. Flojo, 168 SCRA 540)
c. "Venue for all suits, whether for breach thereof or
damages or any cause between the LESSOR and LESSEE, and
persons claiming under each, ** (shall be) the courts of
appropriate jurisdiction in Pasay City." REASON: The language
used leaves no room for interpretation. It clearly evinces the
parties' intent to limit to the "courts of appropriate jurisdiction of
Pasay City" the venue of all suits between the lessor and the
lessee and those between parties claiming under them. This
means a waiver of their right to institute action in the courts
provided for in Rule 4, Sec. 2. (Gesmundo v. JRB Realty Corporation,
234 SCRA 153)
 57
15. What is the rule on permissive agreement
on venue ? How should this rule be interpreted ?
SUGGESTED ANSWER: The parties may file their suit not
only in the place agreed upon but also in the places fixed by law
(specifically Rule 4 of the Rules of Court). (Unimasters
Conglomeration, Inc. v. Court of Appeals, et al., 267 SCRA 759, 767)
Stipulations designating venues other than those assigned
by Rule 4 of the Rules of Court should be interpreted as designed
to make it more convenient for the parties to institute actions
arising from or in relation to their agreements; that is to say, as
simply adding to or expanding the venues indicated in said Rule 4.
REASON: Convenience is the raison d'etre of the rules of
venue. (Ibid.)
16. Give some illustrative cases of permissive
agreements on venue.
SUGGESTED ANSWER:
a. "The parties agree to sue and be sued in the Courts
of Manila." REASON: The parties merely consented to be sued in
Manila. Qualifying or restrictive words which would indicate that
Manila and Manila alone is the venue are totally absent therefrom.
It is simply permissive. The parties solely agreed to add the courts
of Manila as tribunals to which they may resort. They did not
waive their right to pursue remedy in the courts specifically
mentioned in Sec. 2 of Rule 4. (Polytrade Corporation v. Blanco, 30
SCRA 187)
b. "All legal actions arising out of this contract may be
brought in and submitted to the jurisdiction of the proper courts in
the City of Manila." REASON: It would be defeating the rationale
for venue for personal actions which is the convenience of the
plaintiff and his witnesses as well as to promote the ends of justice
by confining the situs of the action to Manila alone. In this case
the residences or offices of all the parties, including the situs of the
acts sought to be restrained or required to be done, are all within
the territorial jurisdiction of Rizal. (Nicolas v. Reparations
Commission, 64 SCRA 110)
c. The stipulation in the promissory note and the chattel
mortgage specified Davao City as the venue. REASON: The
absence of qualifying or restrictive words in the agreement which
would indicate that the place named is the only venue agreed
upon. (Lamis Ents. v. Lagamon, 108 SCRA 740)
d. "All actions arising out, or relating to this contract may
be instituted in the Court of first Instance of the City of Naga."
REASON: The parties did not agree to file their suits solely and
exclusively with the Court of First Instance of Naga (now Regional
Trial Court); they merely agreed to submit their disputes to the
said court without waiving their right to seek recourse in the courts
specifically indicated in Sec. 2, Rule 4 of the Rules of Court.
(Capati v. Ocampo, 113 SCRA 794)
e. "The parties stipulate that the venue of the actions
referred to in Section 12.01 shall be in the City of Manila."
(Western Minolco v. Court of Appeals, 167 SCRA 592)
f. The sales invoice of a linotype machine stated that
the proper venue should be Iloilo. REASON: It is obvious that a
venue stipulation, in order to bind the parties, must have been
intelligently and deliberately intended by them to exclude their
case from the reglementary rules on venue. There are no
restrictive or qualifying words in the agreement indicating that
venue cannot be laid in any place other than that agreed upon by
the parties. (Moles v. Intermediate Appellate Court, et al., 169 SCRA
777)
17. A leased his commercial land and
building in Malate, Manila, to B:, a resident of Malolos,
Bulacan. The Contract of Lease provided that in the event
A violates the contract, B may file suit in Manila, As
residence, and if B violates the Contract, A may sue B:
in Malolos. B violated the Contract, entitling A to sue for
ejectment.
If you were the lawyer of A, where and which court
can you lawfully file the action for ejectment ? Explain.
SUGGESTED ANSWER: I can lawfully file the action for
ejectment either before the Metropolitan Trial Court of the National
Capital Region with seat at Manila where the property is located or
before the Municipal Trial Court with seat at Malolos, Bulacan
where B resides.
This is so because the lower courts referred to have
exclusive original jurisdiction over unlawful detainer cases.
Furthermore, the agreement with regard to venue is permissive as
shown by the word may hence A has the option of filing the
case either in Manila or in Bulacan.
18. Unimasters, a corporation has for its principal
place of business Tacloban City while Kubota has its
principal place of business in Quezon City. Unimasters then
instituted suit against Kubota in Tacloban City. Kubota now
files a motion to dismiss considering the contractual
agreement that, "All suits arising out of this Agreement shall
 58
be filed with/in the proper Courts of Quezon City." Resolve
the motion to dismiss.
SUGGESTED ANSWER: Denied. The agreement does
not contain additional words and expressions definitely and
unmistakably denoting the parties desire and intention that actions
between them should be ventilated only at the place selected by
them, Quezon City - or other contractual provisions clearly
evincing the same desire and intention. Thus, the stipulation
should be construed, not as confining suits between the parties
only to that one place, Quezon City, but as allowing suits either in
Quezon City or Tacloban City, at the option of the plaintiff
Unimasters. (Unimasters Conglomeration, Inc. v. Court of Appeals, et
al., 267 SCRA 759,778)
19. When may venue be considered as having been
waived ? Why ?
SUGGESTED ANSWER: Improper venue if not properly
objected to in a motion to dismiss or in the answer is deemed
waived and may not be raised in proceedings after filing the
answer.
A contrary rule would encourage the undesirable practice of
parties submitting their case in one court in expectation of
favorable judgment, but with the intent of attacking its
jurisdiction/venue should the decision be unfavorable. (Vda. de
Suan, et al., v. Cusi, et al., 125 SCRA 349)
RULE ON SUMMARY PROCEDURE
1. What is the purpose of the Rule on Summary
Procedure ?
SUMMARY PROCEDURE: In order to achieve expeditious
and inexpensive determination of cases. Speedy resolution of
cases is a matter of public policy. (Farrales v. Judge Camarista, A.M.
No. MTJ-99-1184, March 2, 2000)
2. What civil cases are subject to summary
procedure ?
SUGGESTED ANSWER: The following are the civil cases
that are subject to summary procedure:
a. Except in cases covered by the agricultural tenancy
laws or when the law otherwise expressly provides, all actions for
forcible entry and unlawful detainer, irrespective of the amount of
damages or unpaid rentals sought to be recovered shall be
governed by the summary procedure under Rule 70, Rules of
Court. (Sec. 3, Rule 70, ROC)
b. All other cases, except probate proceedings, falling
within the jurisdiction of the four lower trial courts (Municipal Trial
Court, Municipal Circuit Trial Court, Municipal Trial Courts in
Cities, Metropolitan Trial Courts), where the total amount of the
plaintiff's claim does not exceed one hundred thousand pesos
(P100,000.00) or, two hundred thousand pesos (P200,000.00), in
Metro Manila, exclusive of interest and costs. [Sec. 2, 1 (A) (2),
Rule on Summary Procedure, as amended by A.M. No. 02-011-09-SC,
November 12, 2002)
3. For failure of the tenant, X, to pay rentals, A, the
court-appointed administrator of the estate of Henry Datu,
decides to file an action against the former for the recovery of
possession of the leased premises located in Danao City and
for the payment of the accrued rentals in the total amount of
P500,000.00.
If the case is filed with the Municipal Trial Court in
Cities (MTCC), is it covered by the Rule on summary
Procedure ?
SUGGESTED ANSWER: Yes, because all unlawful
detainer cases are subject to summary procedure.
4. What is the purpose of summary procedure
for forcible entry and unlawful detainer ?
SUGGESTED ANSWER: Forcible entry and unlawful
detainer cases are summary proceedings designed to provide for
an expeditious means of protecting actual possession or the right
to possession of the property involved. It does not admit of delay
in the determination thereof. It is a time procedure designed to
remedy the situation. (Tubiano v. Razo, G.R. No. 132598, July 13,
2000)
5. Distinguish summary procedure for forcible
entry and unlawful detainer cases FROM summary procedure
for other cases ?
SUGGESTED ANSWER:
a. Forcible entry and unlawful detainer cases are
governed by rule on summary procedure stated under Rule 70 of
the Rules of Court WHILE those for other cases are governed by
the Rule on Summary Procedure.
b. In forcible and unlawful detainer cases the amount of
the demand is immaterial WHILE for other cases, except probate,
 59
the total amount of the plaintiff's claim does not exceed , one from receipt of the summons because the case falls under the
hundred thousand pesos (P100,000.00) or, two hundred Summary Procedure. He then filed a motion to dismiss on
thousand pesos (P200,000.00), in Metro Manila exclusive of the ground of lack of jurisdiction over the subject matter and
interest and costs. for failure to comply with prior referral to the Barangay for
conciliation and mediation. The plaintiff opposed the motion
6. What pleadings are allowed under on the ground that a motion to dismiss the complaint is a
summary procedure ? prohibited pleading under the Rule on Summary Procedure.
SUGGESTED ANSWER: The only pleadings allowed to be Rule on the motion.
filed are the SUGGESTED ANSWER: Motion granted. A motion to
a. complaint, dismiss premised upon lack of jurisdiction over the subject matter
b. answer ( answer to the counterclaim, answer to the or failure to comply with the requisites for prior Barangay referral is
cross-claim.) not a prohibited pleading under the Rule on Summary Procedure.
If the defendant has a cross-claim or a compulsory [Sec. 19 (b), 1991 Revised Rules on Summary Procedure]
counterclaim, the same must be asserted in the answer, or be
considered barred. (Sec. 2 [A], Rule on Summary Procedure 9. When is a motion for reconsideration or new trial
arrangement and numbering supplied) a prohibited pleading under summary procedure?
SUGGESTED ANSWER: A motion for new trial, or for
7. What pleadings and motions are prohibited reconsideration of a judgment, or for reopening of trial is a
under the summary procedure for both civil and criminal prohibited pleading under Sec. 19 (c) of the 1991 Revised Rules
cases ? on Summary Procedure only if it seeks the reconsideration of a
SUGGESTED ANSWER: judgment rendered by the court only after trial on the merits of the
1) Motion to dismiss or to quash; case. (Lucas v. Judge Fabros, etc., A.M. No. MTJ-99-1226, January 31,
2) Motion for bill of particulars; 2000)
3) Motion for new trial, or for consideration, or
reopening of trial; 10. When motion for reconsideration or new trial NOT
4) Petition for relief from judgment; a prohibited pleading under summary procedure ?
5) Motion for extension of time to file pleadings, SUGGESTED ANSWER: A motion for reconsideration is
affidavits or any other paper; not a prohibited pleading under the 1991 Rules on Summary
6) Memoranda; Procedure, if the order of dismissal was issued due to failure of a
7) Petition for certiorari, mandamus, or prohibition party to appear during the preliminary conference. (Lucas v. Judge
against any interlocutory order issued by the court; Fabros, etc., A.M. No. MTJ-99-1226, January 31, 2000)
8) Motion to declare the defendant in default;
9) Dilatory motions for postponements; 11. Juan Santos appeals the decision against
10) Reply; him to the Regional Trial Court (RTC) which affirmed in toto
11) Third party complaints; the lower courts decision. Juan then filed a motion for
12) Intervention. (Sec. 15, Rule on Summary reconsideration. Maria Cruz moves to strike out the motion
Procedure) for reconsideration as it is a prohibited pleading under the
The above pleadings are prohibited only within the level of Rules of Summery Procedure.
the Municipal Trial Court. When the case tried under summary Is this tenable ? Decide with reasons.
procedure is appealed to the Regional Trial Court the concept of SUGGESTED ANSWER: No. A motion for reconsideration
prohibited pleadings does not find application. or new trial is prohibited only within the level of the Municipal Trial
Court. When the case tried under summary procedure is
8. A defendant who was sued in the Metropolitan appealed to the Regional Trial Court the concept of prohibited
Trial Court was required to file an answer within ten (10) days pleadings does not find application.
 60
12. Effects of the failure to file an answer in a Thus, the issues in very case are limited to those presented
civil case governed by the Summary Procedure Rules in the pleadings. (Ibid.)
DISTINGUISHED FROM the effects of failure to file an answer
a civil case governed by the regular provisions of the Rules of 3. What system of pleading is adopted in the Rules
Court. ?
SUGGESTED ANSWER: Under the Rule on Summary SUGGESTED ANSWER: Our system of pleading is Code
Procedure, upon failure of to file an answer in a civil case, the Pleading or that system used in the Sates of the Union (USA)
court motu proprio or upon motion of the plaintiff, shall render a which had adopted codes of procedure under which the existence
judgment as may be warranted by the facts alleged in the of privity of contract between plaintiff and defendant is not
complaint and limited to what is prayed for therein except as to the required. All that is required is a legal and material interest in the
amount of damages which the court may reduce in its discretion. subject of the litigation in order that a person may sue as plaintiff
(Sec. 5, Rule on Summary Procedure) WHILE under regular or be sued or joined as defendant. (Marquez v. Varela, 92 Phil. 373)
procedure If the defending party fails to answer within the time
allowed therefor, the court, shall, upon motion of the claiming party 4. What pleadings are allowed by the Rules ?
with notice to the defending party, and upon proof of such failure, SUGGESTED ANSWER: Pleadings allowed under the
declare the defending party in default. Thereupon, the court shall Rules of Court under regular procedure. The claims of a party are
proceed to render judgment granting the claimant such relief as asserted in a
his pleading may warrant, unless the court in its discretion requires a. complaint,
the claimant to submit evidence. Such reception of evidence may b. counterclaim,
be delegated to the clerk of court. (Sec. 3, Rule 9, ROC) c. cross-claim,
A judgment rendered against a party in default shall not d. third (fourth, etc.) party complaint, or
exceed the amount or be different in kind from that prayed for, nor e. complaint in intervention.
award unliquidated damages. [Sec. 3 (d), Rule 9, ROC] The defenses of a party are alleged in the answer to the
pleading asserting a claim against him.
PLEADINGS An answer may be responded to by a reply. (Sec. 2, Rule
6, ROC arrangement and numbering supplied)
Pleadings allowed under summary procedure. The only
PLEADINGS IN GENERAL pleadings allowed to be filed are the
a. complaint,
1. Define pleadings in general. b. answer ( answer to the counterclaim, answer to the
SUGGESTED ANSWER: Pleadings are cross-claim.)
a. the written statements If the defendant has a cross-claim or a compulsory
b. of the respective claims and defenses of the parties counterclaim, the same must be asserted in the answer, or be
c. submitted to the court for appropriate judgment. (Sec. considered barred. (Sec. 2 [A], Rule on Summary Procedure
1, Rule 6, ROC arrangement and numbering supplied) arrangement and numbering supplied)

2. What is the object of pleadings ? COMPLAINT

SUGGESTED ANSWER: The object of the pleadings is to
draw the lines of battle between the litigants and to indicate fairly 1. What is a complaint ? What must it contain
the nature of the claims or defenses of both parties. [Ortega v. ?
Social Security System, et al., G. R. No. 176150, June 25, 2008 citing SUGGESTED ANSWER: The complaint is the pleading
Lianga Lumber Co., v. Lianga Timber Co., Inc., 106 Phil. 661-686; 70
SCRA 197 (1977)]
a. alleging the plaintiffs cause or causes of action.
 61
b. The names and residences of the plaintiff and
defendant must be stated in the complaint. (Sec. 3, Rule 6, ROC,
arrangement and numbering supplied)
FORMAL REQUIREMENTS
1. How is a verification made ?
SUGGESTED ANSWER: A pleading is
a. verified by an affidavit
b. that the affiant has read the pleading and
c. that the allegations therein are true and correct
1) of his personal knowledge
2) or based on authentic records. (2nd par., Sec.
4, Rule 7, ROC as amended by A.M. No. 00-2-10-SC, effective
May 1, 2000, arrangement and numbering supplied)
2. What is the purpose of verification ?
SUGGESTED ANSWER: To secure an assurance that the
allegations in the pleadings are true and correct and not the
product of the imagination or a matter of speculation, and that the
pleading is filed in good faith. The court may order the correction
of the pleading if verification is lacking or act on the pleading
although it is not verified, if the attending circumstances are such
that strict compliance with the rules may be dispensed with in
order that the ends of justice may thereby be served. (Uy v. Land
Bank of the Philippines, G.R. No. 136100, July 24, 2000)
3. What is the nature of verification ?
SUGGESTED ANSWER: The requirement regarding
verification of a pleading is formal, not jurisdictional. (Sy v.
Habacon-Garayblas, 228 SCRA 644 cited in Uy v. Land Bank of the
Philippines, G.R. No. 13100, July 24, 2000; Sps. Valmonte v. Alcala, et
al., G.R. No. 168667, July 23, 2008) Such requirement is simply a
condition affecting the form of the pleading, non-compliance of
which does not necessarily render the pleading fatally defective.
(Republic v. Lee Wai Lam, 28 SCRA 1043 cited in Uy v. Land Bank of the
Philippines, G.R. No. 136100, July 24, 2000, Shipside Incorporated v.
Court of Appeals, G.R. No. 143377, February 20, 2001)
It is a condition affecting the form of the pleading; non-
compliance with this requirement does not necessarily render the
pleading fatally defective. Verification is simply intended to secure
an assurance that the allegations in the pleading are true and
correct and not the product of the imagination or a matter of
speculation, and that the pleading is filed in good faith. (Sps.
Gutierrez v. Sps. Valiente, et al., G. R. No. 166802, July 4, 20 citing
Gordoland Development Corp. v. Republic of the Philippines, supra note
38; Benguet Corporation v. Cordillera Caraballo Mission, Inc., supra note
38; Shipside Inc. v. Court of Appeals, 404 Phil. 981, 995 (2001). Thus,
the appellate court could have simply ordered the correction of the
pleading or act on the unverified pleading, if the attending
circumstances are such that strict compliance with the rule may be
dispensed with in order to serve the ends of justice. (Sps. Gutierrez.
supra citing Ballao v. Court of Appeals, G.R. No. 162342, October 11,
2006, 504 SCRA 227, 233; Pfizer, Inc. v. Galan, 410 Phil. 483, 492 (2001)
4. The petition before the Court of Appeals
was dated March 31, 2008 while the Verification/Certification
carried an earlier date March 17, 2008 ? Was the verification
prepared ahead of the pleadings being verified a valid
verification ? Explain briefly.
SUGGESTED ANSWER: Yes, under certain
circumstances.
First, the variance in dates does not necessarily contradict
the categorical declaration made by pleaders in their affidavit that
they read and understood the contents of the pleading. A claim
that they read a copy of the CA Petition through an electronic mail
(e-mail) sent to them by their lawyers is a reasonable explanation
of why a variance in dates existed.
The reality is that pleadings are prepared and signed by
the counsel at the instructions of the client; the latter merely
provides the supporting facts of the pleading and, as needed,
verifies that the allegations are true and correct. In short, the
pleading and the verification are prepared separately and a
variance in their dates is a matter that may satisfactorily be
explained.
To demand the litigants to read the very same document
that is to be filed before the courts is too rigorous a requirement;
what the Rules require is for a party to read the contents of a
pleading without any specific requirement on the form The latter,
on the other hand, complied with their end not only by approving
the terms of the petition, but also by sending a copy of their sworn
statement (as yet unauthenticated) in order to file the petition
soonest, thereby complying with the required timeliness for the
filing of the petition. To our mind, beyond the manner of these
exchanges, what is important is that efforts were made to satisfy
the objective of the Rule to ensure good faith and veracity in the
allegations of a pleading thereby allowing the courts to act on
the case with reasonable certainty that the petitioners real
positions have been pleaded.
 62
Second, the circumstances referred to the petitioners
unique situation as parties residing overseas who are litigating
locally through their local counsel. While these overseas litigants
are not excused from complying with our Rules such as the strict
observance of the periods for appeal and the verification
requirement, we must take into account the attendant realities
brought into play because they are suing from overseas or via long
distance communications with their counsel. In the verification
requirement, there are added formalities required for the
acceptance in the Philippines of statements sworn overseas
before foreign notaries; Their authentication by our consulates is
required. This is a process whose completion time may vary
depending, among others, on various factors such as the location
of the requesting party from the consulate; the peculiarities of
foreign laws on notaries; the volume of transactions in a consulate,
noting particularly the time of year when the authentication is
requested; and the mode of sending the authenticated documents
to the Philippines. judicial notice was taken of the fact the
petitioners request for authentication coincided with the
observance of the Holy Week a traditional period of prayer and
holidays in the Philippines, for the Philippines foreign embassies
and consulates, and even for Filipinos overseas.
Third, The utmost good faith on the part of the petitioners
is discerned when they filed their Manifestation about their
problem, intent, and plan of compliance with the verification
requirement. They in fact stated early on through this
Manifestation that their verification had been executed on March
17, 2005 in Washington, that is, at a date much earlier than the
filing of their petition and manifestation
Fourth, most of the material allegations set forth by
petitioners in their CA Petition are already in their complaint for
unlawful detainer filed before the MTC on April 26, 2002 The
material facts alleged in the CA Petition are likewise stated in the
records of the case, as part of the findings of facts made by the
MTC and the RTC. Verification as to the truth of these facts in the
petition for review before the CA was, therefore, strictly a
redundancy; its filing remained a necessity only because the
Rules on the filing of a petition for review before the CA require it.
This consideration could have led to a more equitable treatment of
the petitioners failure to strictly comply with the Rules, additionally
justified by the fact that the failure to comply with the rules on
verification is a formal rather than a jurisdictional defect. (Sps.
Valmonte v. Alcala, et al., G.R. No. 168667, July 23, 2008 citing various
cases)
5. What pleadings are required to be verified
?
a. Answer contesting the genuineness of an actionable
document. (Sec. 8, Rule 8, ROC)
b. Petition for relief from judgment. (Sec. 3, Rule 38, Ibid.)
c. Complaint with an application for preliminary
injunction. (Sec. 4, Rule 58, Ibid.)
d. Complaint for replevin. (Sec. 2, Rule 60, Ibid.)
e. Petitions for certiorari, prohibition and mandamus.
(Rule 65, Ibid.)
f. All pleadings under the Rule on Summary Procedure.
The above is not complete as there are others.
6. What is the effect of failure to verify a pleading ?
SUGGESTED ANSWER: It cannot be over-emphasized
that the requirement on verification is simply a condition affecting
the form of pleadings. Non-compliance with it is not jurisdictional,
and would not render the pleading fatally defective. (Heirs of the
late Jose de Luzuriaga, etc., et al., v. Republic, etc., G. R. 168848, June
30, 2009 and companion case, citing Guy v. Asia United Bank, G.R. No.
174874, October 4, 2007, 534 SCRA 703, 716; citing Heavylift Manila,
Inc. v. Court of Appeals, G.R. No. 154410, October 20, 2005, 473 SCRA
541 and Robern Development Corporation v. Quitain, G.R. No. 13042,
September 23, 1999, 315 SCRA 150)
A pleading required by the Rules of Court to be verified
may be given due course even without a verification if the
circumstances warrant the suspension of the rules in the interest
of justice. (supra citing Linton Commercial Co., Inc. v. Hellera, G.R. No.
163147, October 10, 2007, 535 SCRA 434, 446; citing Precision
Electronics Corporation v. National Labor Relations Commission, G.R.
No. 86657, October 23, 1989, 178 SCRA 667, 670)
7. When a lawyer signs a pleading, to what
does he certify ? If the pleading is filed with the court and the
certification is false, what action may be taken against him ?
SUGGESTED ANSWER: The signature of a lawyer
constitutes a certification by him:
a. that he has read the pleading;
b. that to the best of his knowledge, information and
belief, there is good ground to support it; and
c. it is not interposed for delay. (2nd par. Sec. 3, Rule 7,
ROC, numbering and arrangement supplied)
Counsel who deliberately signs a pleading in violation of this
rule, or alleges scandalous or indecent matter therein, shall be
subject to appropriate disciplinary action. (3rd par., Sec. 3, Ibid.)
 63
a) either pending in,
8. What is the effect of an unsigned pleading ? b) or already resolved adversely by, some
SUGGESTED ANSWER: other court. (Sps. Diu v. Ibajau et al., G. R. No. 132657,
a. An unsigned pleading produces no legal effect. Jan. 19, 2000 arrangement and numbering supplied)
1) However, the court may, in its discretion,
2) allow such deficiency to be remedied 11. Give examples of forum shopping.
3) if it shall appear that the same SUGGESTED ANSWER:
a) was due to mere inadvertence and a. Forum-shopping concurs not only when a final
b) not intended for delay. judgment in one case will amount to res judicata in another, but
b. Counsel who also where the elements of litis pendentia are present.- Forum-
1) deliberately files an unsigned pleading, or shopping concurs not only when a final judgment in one case will
2) signs a pleading in violation of this rule, or amount to res judicata in another, but also where the elements of
3) alleges scandalous or indecent matter therein, litis pendentia are present. The filing of multiple suits involving the
or same parties for the same cause of action, either simultaneously
4) fails to promptly report to the court a change of or successively, for the purpose of obtaining a favorable judgment
his address, amounts to forum-shopping.
5) shall be subject to appropriate disciplinary b. A lawyer filed nine judicial remedies in different
action. (3rd par., Sec. 3, Rule 7, ROC, arrangement and courts, attacking the jurisdiction of the Metropolitan Trial Court in
numbering supplied) one case. (Gatmaytan v. Court of Appeals, et al., G.R. No. 123332,
February 3, 1997)
9. Give an example of unsigned pleading. c. There would be forum shopping if all of the
SUGGESTED ANSWER: respondents acting as one group, filed identical special civil
A pleading required to be verified which actions in the Court of Appeals and in the Supreme Court. There
a. contains a verification based must be identity of parties, of interests represented, rights
1) on information and belief, or asserted and relief sought in different tribunals. (Ruby Industrial
2) upon knowledge, information and Corporation, et al., v. Court of Appeals, et al., G.R. No. 124185-87,
belief, or January 20, 1998)
b. lacks a proper verification
shall be treated as an unsigned pleading. (3rd par., Sec. 4, 12. What is the test for determining whether
Rule 7, ROC, arrangement and numbering supplied) there is prohibited forum shopping ?
SUGGESTED ANSWER: Where the elements of litis
10. What is forum shopping ? pendentia are present or where a final judgment in one case will
SUGGESTED ANSWER: There is forum shopping amount to res judicata on the other. Where there exists between
a. When, as a result of an adverse opinion in one forum, the two cases:
a party seeks a favorable opinion (other than by appeal or a. Identity of parties, or at least such parties as
certiorari) in another case, or representing the same interests in both actions, as well as
b. When a party b. Identity of rights asserted and relief prayed for, the
1) repetitively avails himself of several judicial relief being founded on the same facts, and the
remedies in different courts, simultaneously or successively, c. Identity on the two preceding particulars is such that
2) all substantially founded on the any judgment rendered in the other action, will regardless of which
a) same transactions and the party is successful amount to res judicata in the action under
b) same essential facts and circumstances, consideration; all the requisites, in fine, of auter action pendant.
and (First Philippine International Bank, etc., v. Court of Appeals, et al., G.R.
3) all raising substantially the same issues No. 115849, January 24, 1996)
 64
13. When is a certification of no forum
shopping required ?
SUGGESTED ANSWER: The certification is primarily
intended to cover:
a. an initiatory pleading or
b. an incipient application of a party asserting a claim
for relief (Santo Tomas University Hospital v. Surla, et al., G.R. No.
129718, August 17, 1998), such as a permissive counterclaim while
a compulsory counterclaim is not covered by the requirement.
The requirement certification of no forum shopping has not
been contemplated to include a claim which, by its very nature as
being auxiliary to the proceedings in the suit and as deriving its
substantive and jurisdictional support therefrom, can only be
appropriately pleaded in the answer and not remain outstanding
for independent resolution except by the court where the main
case pends (Santo Tomas University Hospital, supra)
14. Who should sign the certification of no
forum shopping ?
SUGGESTED ANSWER: All petitioners must be
signatories to the certification of no forum shopping unless one is
authorized by other petitioners. Substantial compliance will not
suffice in a matter involving strict observance by the rules. The
attestation contained in the certification on non-forum shopping
requires personal knowledge by the party who executed the same.
Petitioners must show reasonable cause for failure to personally
sign the certification. Utter disregard of the rules cannot justly be
rationalized by harking on the policy of liberal construction.
(Loquias, et al., v. Office of the Ombudsman, G.R. No. 139396, August
15, 2000)
15. Is there an instance where the certification was
considered valid despite signature of only one party ?
SUGGESTED ANSWER: Yes. Consideration should have
been taken of the fact that the parties were sued jointly, or as Mr.
And Mrs. Over a property in which they have a common interest.
Such being the case, the signing of one of them in the certification
substantially complies with the rule on certification of non-forum
shopping. (Dar et al., v. Hon. Alonzo-Legasto, etc.,, et al., G.R. No.
1433016, August 30, 2000)
There was substantial compliance with the rule even if it
was only the husband that signed the certification in a petition for
certiorari for the recovery of conjugal property because both
spouses are administrators of the conjugal property. This is unlike
the case of encumbrance or alienation where both spouses must
act together. In acts of administration, each spouse may validly
exercise full power alone, subject to court intervention under
article 124 of the Family Code. (Docena et al., v. Lapsaura et al., G.R.
No. 140153, March 28, 2001)
16. May a lawyer sign a certification of no forum
shopping ?
SUGGESTED ANSWER: No, as a general rule. The
certification of no forum shopping must be signed by the parties
NOT their lawyers.
The certification of non-forum shopping must be signed by
the plaintiff or any of the principal party and not the attorney,
because the counsel may not be aware of the facts. The client
knows them. The counsel may be aware of the case, but not of
other possible actions. If it is a corporation, any of the directors
may sign. (Ortiz v. Court of Appeals, 299 SCRA 708; Escorpizo v.
University of Baguio, 306 SCRA 497; Digital Microwave Corp. v. Court of
Appeals et al., G.R. No. 1288550, March 6, 2000)
17. When may a lawyer validly sign a certification of
no forum shopping ?
SUGGESTED ANSWER: In the case of BA Savings Bank
v. Sia, et al., G.R. No. 131214, July 27, 2000 the signature of the
counsel on the certification of non-forum shopping was considered
valid because of a Resolution of the corporations Board of
Directors authorizing the corporations lawyers to act as their
agents in any action or proceeding before the Supreme Court, the
Court of Appeals or any other tribunal or agency and to sign,
execute and deliver in connection therewith the necessary
pleadings, motions, verifications, affidavits of merit, certificates of
non-forum shopping and other instruments necessary for such act
and proceedings Reason: A corporation could perform physical
acts, like signing documents, only through its authorized natural
persons.
18. What are the sanctions imposed for the
violation of the rule on no forum shopping ?
SUGGESTED ANSWER:
a. A violation of the rule against forum shopping for
failure to comply with the requirement for a certification of no
forum shopping shall not be curable by mere amendment of the
complaint or other initiatory pleading but shall be cause for the
dismissal of the case without prejudice, unless otherwise provided,
 65
upon motion and after hearing. (2nd sentence, 2nd par., Sec. 5, Rule 7, cause of action insufficient. (Abe v. Foster Wheeler Corp., L-14785,
ROC) November 29, 1960; Remitere v. vda. De Yulo, L-1975, February 28,
b. A violation of the rule through the submission of a 2966)
false certification of no forum shopping or non-compliance with the If the ultimate facts are contained in documents, the pleader
undertaking shall constitute indirect contempt of court, without must nevertheless allege those fact, and not merely attach those
prejudice to the corresponding administrative and criminal actions. documents to the pleading. (Canete v. Wislizenus, 36 Phil. 428)
nd nd
(2 Sentence, 2 par., Sec. 5, Rule 7, ROC)
c. Willful and deliberate forum shopping shall be a 3. Distinguish Ultimate facts FROM evidentiary
ground for summary dismissal with prejudice and shall constitute facts.
direct contempt, as well as a cause for administrative sanctions. SUGGESTED ANSWER: Ultimate facts are those to be
nd
(last sentence, 2 par., Sec. 5, Rule 7, ROC) contained in the complaint, being essential to ones cause of
action WHILE evidentiary facts are those which are not required to
19. Distinguish failure to comply with the requirement be contained in ones complaint as they are proven only during the
for a certification of no form shopping from violation of the tidal in support of the ultimate facts.
prohibition against forum shopping.
SUGGESTED ANSWER: 4. What is the test of the sufficiency of the
a. Failure to comply with the certification requirement facts alleged to constitute a cause of action ?
constitutes sufficient cause for dismissal without prejudice WHILE SUGGESTED ANSWER: The test usually applied in
violation of the prohibition results to dismissal and direct contempt. determining the sufficiency of facts alleged in a complaint
b. Dismissal for failure to comply with the certification constituting the cause of action is whether upon such facts a valid
requirement requires a motion and hearing WHILE dismissal for judgment may be rendered against the defendant. (Arnedo v. Rio y
violation of the prohibition is summary in nature. Olabarrieta, 92 Phil. 214; Raquiza v. Ofilada, L-17182, September 30,
c. The certification is required whether or not forum 1963)
shopping was committed. (Spouses Ong v. Court of Appeals, et al.,
July 5, 2002) 5. The complaint alleged that the defendant
acted in bad faith, arbitrarily, illegally, wrongfully, and in
MANNER OF MAKING ALLEGATIONS IN violation of the law. However, it did not contain any averment
PLEADINGS of facts showing that the defendants' acts were done in the
manner alleged.
Does the complaint state a cause of action ?
1. What does a complaint contain ?
SUGGESTED ANSWER: No. The complaint does not
SUGGESTED ANSWER: Every complaint shall
state the ultimate facts constituting the plaintiffs cause of action.
a. contain in a methodical and logical form,
There is no showing of the description of the legal right in favor of
b. a plain, concise and direct statement
the plaintiff, and the way by which the defendant has acted in bad
1) of the ultimate facts
faith, arbitrarily, illegally, wrongfully, and in violation of law.
2) on which the party pleading
3) relies upon for his claim,
c. omitting the statement of mere evidentiary facts. 6. Explain the meaning of splitting a cause of
(Sec. 1, Rule 8, ROC arrangement and numbering supplied) action.
SUGGESTED ANSWER: Splitting a single cause of action
2. Define ultimate facts that must be alleged is dividing a single or indivisible cause of action into several parts
in a complaint. or claims or bringing several actions therein.
SUGGESTED ANSWER: Ultimate facts are the essential .ALTERNATIVE DEFINITION: Splitting a cause of actin is
facts constituting the plaintiffs cause of action. A fact is essential the practice of dividing one cause of action into different parts and
if it cannot be stricken out without leaving the statement of the
 66
making each part the subject of a separate complaint. (Bachrach v.
Icaringal, 68 Phil. 287)
7. What is the test for determining the singleness
of a cause of action ?
.SUGGESTED ANSWER: The test is the number of wrongs.
Where there is only one delict or wrong, there is but a single cause
of action, regardless of the number of rights violated, and all of
those rights violated must be prayed for in one complaint.
In other words, whether the case falls within or without the
rule against splitting depends upon whether the wrong for which
redress is sought is the same in both actions, not upon whether
different grounds for relief for the same wrong are set forth. (1 Am.
Jur. 482; Santos v. Moir, 36 Phil. 350; Camara v. Aguilar, 94 Phil. 527)
But the single delict or wrong must be violative of only one
contract or transaction, for if there are separate an distinct
contracts or transactions between plaintiff and defendant, violation
of each contract or transaction would constitute a separate cause
of action. (Landahl, Inc. v. Monroy, L-6991, November 29, 1957)
8. What is the rule against splitting a cause of
action ?
. SUGGESTED ANSWER: A party may not institute more
than one suit for a single cause of action. (Sec. 3, Rule 2,
ROC)
9. What are the reasons for the rule that a party may
not institute more than one suit for a single cause of action ?
SUGGESTED ANSWER:
a. To prevent repeated litigation between the same
parties in regard to the same subject of controversy;
b. To protect the defendant from unnecessary vexation;
and
c. To avoid the costs incident to numerous suits. (De
Luzuriaga, Sr. v. Adil, et al. 136 SCRA 283)
10. Give the effects of splitting a single cause
of action.
SUGGESTED ANSWER:
a. If two or more suits are instituted on the basis of the
same cause of action, the filing of one or a judgment upon the
merits in any one is available as a ground for the dismissal of the
others. (Sec. 4, Rule 2, ROC)
b. Within the time for but before filing the answer to the
complaint of pleading asserting a claim, a motion to dismiss may
be made on any of the following grounds: xxx xxx
1) That there is another action pending between
the same parties for the same cause; and
2) That the cause of action is barred by res
judicata through bar by prior judgment. (pars. d and f, Sec. 1,
Rule 16, ROC wor5ds not in bold, paraphrasing, arrangement and
numbering supplied)
11. Give examples of causes of action that are
single and may not be split because a judgment in one
constitutes res judicata through bar by prior judgment.
SUGGESTED ANSWER:
a. An indebtedness was secured both by a promissory
note and a mortgage. A judgment upon the promissory precludes
foreclosure of the mortgage. There was only one cause of action,
failure to pay the indebtedness, therefore there was splitting of the
cause of action.
b. An action to annul the sale of shares of stock
includes the dividends that accrued when the first action was filed.
Recovery of dividends that accrued after the filing of the suit is
another cause of action.
c. Recovery of personal property with damages is
indivisible. If suit is brought for possession only, a subsequent
action cannot be maintained to recover damages resulting from
the unlawful detainer.
Reason: There is only one wrong committed, the unlawful
detainer which resulted not only the right to recover the property
but also damages.
12. A brought against B an action for the
recovery of the ownership and possession of a horse alleged
to be illegally detained by the latter. The answer of B was
ownership and right to possession. After trial the court
rendered judgment for the plaintiff ordering the defendant to
deliver to A the horse. B: did not appeal from the
judgment. One year after the judgment had been executed,
A brought against B another action to recover from the
latter damages which, it was alleged wee sustained by him by
reason of the detention of the same horse by B. Could the
second action for damages prosper ? Reason out your
answer.
 67
SUGGESTED ANSWER: No. The second action for
damages will not prosper because of res judicata brought prior
judgment.
The detention of the horse creates a single cause of action
which could not be split into two suits, one for recovery of
possession and ownership of the horse and the other for damages
arising from the detention of the horse. A may have two claims
but that does not create two causes of action as there was only
one violation, the detention of the horse.
13. A purchased a lot from B for P1,500,000.00.
he gave a downpayment of P500,000.00, signed a promissory
note payable thirty days after date, and as a security for the
settlement of the obligation, mortgaged he same lot to B.
When the note fell due and A failed to pay, B commenced suit
to recover from A the balance of P1,000,000.00. After
securing a favorable judgment on his claim, B brought
another action against A before the same court to foreclose
the mortgage. A now files a motion to dismiss the second
action on the ground of bar by prior judgment. Rule on the
motion.
SUGGESTED ANSWER: Motion granted. There was only
one cause of action resulting from the failure to pay the balance.
The second action should be dismissed because B had already a
favorable judgment for the recovery of the P1,000,000.00 balance.
The action for foreclosure has the effect of relitigating again the
same cause of action, recovery of the unpaid balance.
14. Give causes of action that are divisible and
may be the subject of two suits.
SUGGESTED ANSWER:
a. A contract to pay money on installment is divisible.
Each default in payment of an installment may be the subject of an
independent action provided it is brought before the next
installment is due. Each action should include every installment
due at the time the suit is brought.
Illustration of contract of pay money which is a divisible
cause of action.
A contract to pay in three installments on or before the
periods without acceleration clause is shown below:
January 15, 2008 P 50,000.00
February 15, 2008 P 50,000.00
March 15, 2008 P 50,000.00
Upon failure to receive payment on January 15, 2008, the
creditor may file suit for P50,000.00. Should the January and
February installments be not paid, then the creditor ought to file
suit for the total amount of P100,000.00. If the March installment
was not paid while the suit for the collection of the January and
February installments is still pending, then the creditor may file a
separate suit for the March installment.
There is no splitting a single cause of action because when
the suit was filed for the January and February installments, the
March installment was not yet due and demandable.
However, if suits were not filed for the January and
February installments and the August installment becomes due
and demandable, then a single sit should be filed for the January,
February and March installments because there is only one cause
of action, which is the failure to pay the obligation of P150,000.00.
b. When a cause of action divisible and when it is
not divisible. A contract to pay interest may or may not be
separate from payment of principal. Suit may be brought
separately for interest due prior to the time the principal becomes
due. When the interest has not yet been paid at the time the
principal becomes due, then unpaid interests already due
becomes merged with the principal into a single cause of action.
15. On February 15, 2008, Leon filed with the
Regional Trial Court against Sharon an action to quiet title,
annulment of titles and deeds, declaration of sole heirship
and/or ownership with damages involving a parcel of land
registered in Sharon's name.
Later, on February 19, 2008, Leon filed with the
Municipal Trial Court an action for forcible entry with
damages against Sharon involving the same property subject
of the suit in the Regional Trial Court.
Sharon now raises in the answer filed in the ejectment
suit the defense of splitting a single cause of action. Rule on
the defense.
SUGGESTED ANSWER: The defense is impressed with
merit. In the first case the determination of ownership is at issue.
While it could be seen that the forcible entry case arose out of
conflicting claims of ownership over the land; the issue of
ownership is indispensably involved.
This is evident, because in the second complaint for forcible
entry, Leon anchors his claim for rightful possession his alleged
ownership over the subject property.
 68
Leon has thus brought two separate suits for a single cause
of action. The result therefore is that the filing of the first may be
pleaded in abatement of the second suit. The forcible entry case
should therefore be dismissed. (De Luzuriaga, Sr. v. Adil., et al.,
136 SCRA 279)
JOINDER OF CAUSES OF ACTION
1. What is meant by joinder of causes of
action ?
SUGGESTED ANSWER: Joinder of causes of action is the
union of two or more civil causes of action, each of which could be
made the basis of a separate suit, in the same complaint,
declaration or petition.
A plaintiff may under certain circumstances join several
distinct demands, controversies or rights of action in one
declaration, complaint or petition. (Republic v. Hernandez, G.R. No.
117209, February 9, 1996)
2. What is the purpose of the rule on joinder of
causes of action ?
SUGGESTED ANSWER:
a. To avoid multiplicity of suits where the same parties
and subject matter are to be dealt with by effecting in one action a
complete determination of all matters in controversy and litigation
between the parties involving one subject matter, and
b. To expedite the disposition of litigation at a minimum
cost. (Republic v. Hernandez, et al., G.R. No. 117209, February 9, 1996)
To encourage joinder of actions which could reasonably be
said to involve kindred rights and wrongs and the dominant idea is
to permit joinder of causes of action, legal or equitable, where
there is some substantial unity between them. While the rule
allows a plaintiff to join many separate claims as he may have
there should nevertheless be some unity in the problem presented
and a common question of law and fact involved, subject always to
the restriction thereon regarding jurisdiction, venue and joinder of
parties. Unlimited joinder is not authorized. (Republic v. Hernandez,
G.R. No. 117209, February 9, 1996 underlining supplied)
3. May different causes of action be joined or
alleged in a complaint ?
SUGGESTED ANSWER: Yes. A party may in one
pleading
a. assert, in the alternative or otherwise,
b. as many causes of actions as he may have
c. against an opposing party,
d. subject to certain conditions.. (Sec. 5, Rule 2, ROC,
arrangement, numbering and words not in bold supplied)
4. Causes of action are subject to the rules on
joinder of causes of action. Discuss briefly the aforesaid
rules.
SUGGESTED ANSWER: A party may in one pleading
assert, in the alternative or otherwise, as many causes of actions
as he may have against an opposing party, subject to the following
conditions:
a. The party joining the causes of action shall comply
with the rules on joinder of parties.
b. The joinder shall not include special civil actions or
actions governed by special rules.
c. Where the causes of action are between the same
parties but pertain to different venue or jurisdiction, the joinder
may be allowed in the Regional Trial Court, provided one of the
causes of action falls within the jurisdiction of said court and the
venue lies therein.
d. Where the claims in all the causes of action are
principally for the recovery of money, the aggregate amount
claimed shall be the test of jurisdiction. (Sec. 5, Rule 2, ROC)
5. What should be the basis for determining the
jurisdiction of the court as to the amount of the demands to be joined ?
SUGGESTED ANSWER: Where the claims in all the
causes of action are principally for the recovery of money, the
aggregate amount claimed shall be the test of jurisdiction. [Sec. 5
(d), Rule 2, ROC]
6. Distinguish compulsory counterclaim
distinguished from joinder of causes of action.
SUGGESTED ANSWER: There are two pleadings in
compulsory counterclaims (the complaint and the compulsory
counterclaim), WHILE there is only one pleading involved in
joinder of causes of action under Sec. 5, Rule 2, ROC.
7. What is the reason why ordinary civil actions
cannot be joined with special civil actions ?
SUGGESTED ANSWER: There is no relation between an
ordinary action and a special civil action, nor are they of the same
nature or character, much less do they present any common
question of fact or law, which cojointly could warrant their joinder.
 69
The two actions do not rightly meet the underlying test of
conceptual unity demanded to sanction their joinder under the
Rules.
8. A has two (2) separate credits against B,
one for P2,000.00 and another for P3,000.00. is A obliged to
file only one complaint against B for the recovery of both
credits ?
SUGGESTED ANSWER: No. The rule on joinder of
causes of action is merely permissive and not compulsory
because of
a. The use of the word may in Sec. 5, Rule 2, ROC.
b. There is no positive provision of law or any rule of
jurisprudence which compels a party to join all his causes of action
and bring them at one and the same time.
The concept of joinder of parties may or may not be
compulsory depending on the party who is to be joined.
9. The complaint filed before the Regional Trial
Court of Manila states two (2) causes of action, one for
rescission of contract and the other for the recovery of One
Hundred Thousand Pesos (P100,000.00), both of which arose
out of the same transaction.
Is the joinder of the two (2) causes of action proper?
Explain.
SUGGESTED ANSWER: Yes. While it is true that only the
cause of action for rescission of contract falls within the jurisdiction
of the Regional Trial Court, the Rules provide that where the
causes of action are between the same parties but pertain to
different venue or jurisdiction, the joinder may be allowed in the
Regional Trial Court, provided one of the causes of action falls
within the jurisdiction of said court and the venue lies therein.
(Sec. 5, Rule 2, ROC)
10. Is misjoinder of causes of action a ground for
dismissal ?
SUGGESTED ANSWER: A misjoined cause of action may,
on motion of a party or on initiative of the court, be severed and
proceeded with separately. (2nd sentence, Sec. 6, Rule 2, ROC)
MOTIONS IN GENERAL
1. What is a motion ?
SUGGESTED ANSWER: A motion is an application for
relief other than by a pleading. (Sec. 1, Rule 15, ROC)
2. What is the purpose of notice of hearing in a
motion ?
SUGGESTED ANSWER: To bring the party into court at
the time of the motion, or at least to inform him that a motion is to
be made, thereby enabling him to appear and contest the motion if
he desires to do so. Prior notice enables the adverse party to
appear for his own protection and be heard before an order is
made. (Odono v. Judge Macaraeg, etc., et al., etc., A..M. No. RTJ-00-
1542, March 16, 2000 citing Far Eastern Surety & Insurance Company,
Inc. v. Vda. de Hernandez , 67 SCRA 256)
The rationale is that unless the movant sets the time and
place of hearing, the court would be unable to determine whether
the adverse party agrees or objects to the motion and if he
objects, to hear him on his objection. (People v. Court of Appeals, et
al., 296 SCRA 418 cited in Fajardo v. Court of Appeals, et al., G.R. No.
144356, March 20, 2001)
The objective of the rule is to avoid a capricious change of
mind in order to provide due process to both parties and ensure
impartiality in the trial. (Meris v. Ofilada, 293 SCRA 606 cited in
Fajardo v. Court of Appeals et al., G.R. No. 140356, March 20, 2001)
It is important, however, to note that these doctrines refer
exclusively to a motion, since a motion invariably contains a
prayer, which the movant makes to the court, and which is usually
in the interest of the adverse party to oppose. The notice of
hearing to the adverse party is therefore a form of due process; it
gives the other party the opportunity to properly vent his opposition
to the prayer of the movant. In keeping with the principles of due
process, therefore, a motion which does not afford the adverse
party .
3. What is the effect of failure to comply with the
requirement for notice of hearing ?
SUGGESTED ANSWER: A motion that does not meet the
notice requirements of Secs. 4 and 5 of Rule 15 of the Rules of
Court is pro forma, and the trial court has no authority to act on it.
The requisites laid down in the aforementioned provisions are
categorical and mandatory, and the failure of the movants to
comply with them renders their motions fatally defective. (Juan, et
al., v. People, G.R. No. 132378, January 18, 2000)
4. Give a motion that requires a notice of hearing
and may therefore be denied if there is none.
 70
SUGGESTED ANSWER: Motion for the lifting of the levy d. may file a verified petition
on a losing partys real properties shall be set for hearing since a 1) in the place of the residence
motion to lift levy is not one of those which the court can act upon 2) of any expected adverse party. (Sec. 1, Rule
without possibly prejudicing the rights of the other party. The 24, ROC arrangement and numbering supplied)
motion to lift levy or attachment is a contentious motion that needs
to comply with the required notice and hearing and service to the FILING AND SERVICE OF PLEADINGS,
adverse party as mandated by Rule 15 of the Rules of Court.
(Solar Resources, Inc. v. Inland Trailways, Inc., G.R. No. 173566, July 4, JUDGMENTS AND OTHER PAPERS
2008) (INCLUDING MOTIONS)
5. Are there any exceptions to the rule that a motion
1. When a party is represented by counsel, to whom
without a notice of hearing is a mere scrap of paper ?
should notice or other pleadings be furnished ?
SUGGESTED ANSWER: Yes. In Tan v. Court of Appeals,
SUGGESTED ANSWER: Service of notice when a party is
et al., G.R. No. 130314, September 22, 1998 it was held that
represented by counsel should be made upon counsel, and not
liberal construction of this rule has been allowed by the Supreme
upon the party. Purpose: To maintain a uniform procedure
Court in the following cases:
calculated to place in competent hands the prosecution of a
a. Where a rigid application will result in a manifest
partys case. (Mancenido, etc. et al., v. Court of Appeals, et al., G.R.
failure or miscarriage of justice (Goldloop Properties, Inc. v. Court of
No. 118605, April 12, 2000)
Appeals, 212 SCRA 498, 504-505), especially if a party successfully
shows that the alleged defect in the questioned final and 2. An answer was filed but it was served by mail
executory judgment is not apparent on its face or from the recitals despite the fact that the offices of the two lawyers were only
contained therein. (Balangcad v. Justices of the Court of Appeals, 200 meters apart from one another. The post office however
February 12, 1992);
is more than two (2) kilometers away from the office of the
b. Where the interest of substantial justice will be
counsel for the defendant. No explanation was given why
served (Tamargo v. CA, 209 SCRA 518, 522);
service by mail was resorted to. Should a motion to strike be
c. Where the resolution of the motion is addressed
granted ?
solely to the sound and judicious discretion of the court (Galvez v.
SUGGESTED ANSWER: Yes. The Rules mandate that
Court of Appeals, 237 SCRA 685, 696-702); and
Whenever practicable the service and filing of pleadings and other
d. Where the injustice to the adverse party is not
papers shall be done personally (Sec. 11, Rule 13, ROC). The use
commensurate with the degree of his thoughtlessness in not
of the word "shall" indicates that personal service is mandatory in
complying with the procedure prescribed. (Galang v. Court of
Appeals, 199 SCRA 683).
character, if no explanation was given. (Solar Entertainment, Inc. v.
Hon. Ricafort, et al., G.R. No. 132007, August 5, 1998)

DEPOSITION BEFORE ACTION 3. Give instances when no personal service is

required but always with explanations.
1. How may a person perpetuate testimony before filing SUGGESTED ANSWER: Where personal service is not
of an action ? practicable such as:
SUGGESTED ANSWER: a. Where the adverse party or opposing counsel to be
a. A person who desires to perpetuate served with a pleading seldom reports to office and no employee
1) his own testimony or is regularly present to receive pleadings;
2) that of another person b. Where service is done on the last day of the
b. regarding any matter reglementary period and the office of the adverse party or
c. that may be cognizable in any court of the opposing counsel to be served is closed, for whatever reason.
Philippines,
 71
(Solar Entertainment, Inc. v. Hon. Ricafort, et al., G.R. No.
132007, August 5, 1998)
4. What is the effect of the absence of an
explanation why service was not done personally ?
SUGGESTED ANSWER: Absence of the explanation of no
personal service negates valid filing. Sec. 11, Rule 13, ROC,
requiring personal service of petitions and other pleadings is the
general rule, while resort to alternative modes of service and filing
is the exception.
Where recourse is made to the exception, a written
explanation of why personal service was not effected is
indispensable, even when such explanation by its nature is
acceptable and manifest. Where no explanation is offered to
justify resort to other modes, the discretionary power of the court
to expunge the pleading becomes mandatory. (Solar Team
Entertainment, Inc. v. Hon. Ricafort et al., G.R. No. 1320017, August 5,
1998 cited in Zulueta v. Asia Brewery, Inc., G.R. No. 138137, March 8,
2001)
Thus the Supreme Court in Zulueta, supra, ruled that the
Court of Appeals should not have considered as having been filed
a petition which does not have an explanation that service by other
modes was resorted to.
DEPOSITIONS AND DISCOVERIES
1. What is the purpose of the different modes of
discovery ?
SUGGGESTED ANSWER: The discovery of every bit of
information which may be useful in the preparation for trial, such
as the identity and location of persons having knowledge of
relevant facts; those relevant facts themselves; and the existence,
description, nature, custody, condition, and location of any books,
documents, or other tangible things.
This would enable the parties to inform themselves, even
before the trial, of all the facts relevant to the action, including
those known only to the other litigants. Through this procedure,
civil trials should not be carried on in the dark. (Security Bank
Corporation v. Court of Appeals, et al., G.R. No. 135874, January 25,
2000)
2. What are the different modes of discovery
under the Rules of Court ?
SUGGESTED ANSWER:
a. Deposition. The written testimony of a witness given
in the course of a judicial proceeding, in advance of he trial or
hearing, upon oral examination or in response to written
interrogatories, and where an opportunity is given for cross-
examination.
b. Interrogatories. These are the questions in writing
served directly on the adverse party to be answered by him or by
his officer. Its scope is as broad as the field of inquiry which a
person interrogated is called upon to testify in an actual trial.
c. Production or inspection of documents or things.
This mode of discovery is an exception to the constitutional
guarantee of privacy of communication and correspondence. It
allows the production or inspection of documents and other things
but does not allow them to be distrained without the knowledge of
their lawful owner or possessor.
d. Admission by adverse party. This may be made at
any time after the pleadings are closed. This may be availed of by
a party by serving upon the other party a written request for the
admission by the latter of the genuineness of any relevant
documents described in and exhibited with the request, or of the
truth of any relevant matters of fact set forth therein.
e. Physical and mental examination of persons. In
an action in which the mental or physical condition of a party is in
controversy, the court in which the action is pending may in its
discretion order him to submit to a physical or mental examination
by a physician. (Sec. 1, Rule 28, ROC)
3. How may depositions be used ?
SUGGESTED ANSWER:
a. Any deposition may be used by any party for the
purpose of contradicting or impeaching the testimony of the
deponent as a witness.
b. The deposition of a party or any one who at the time
of taking the deposition was an officer, director, or managing agent
of a public or private corporation, partnership, or association which
is a party may be used by an adverse party for any purpose.
c. The deposition of a witness, whether or not a party,
may be used by any party for any purpose, if the court finds:
1) That the witness is dead; or
2) That the witness resides at a distance more
than one hundred (100) kilometers from the place of the trial
or hearing;
3) That the witness is unable to attend or testify
because of age, sickness, infirmity or imprisonment; or
 72
4) That the party offering the deposition has been
unable to procure the attendance of his witnesses by
subpoena; or
5) Upon application and notice, that such
exceptional circumstances exist as to make it desirable, in
the interest of justice and with due regard to the importance
of presenting the testimony of witnesses orally in open
court, to allow the deposition to be used; and
d. If only a part of a deposition is offered in evidence by
a party; the adverse party may require him to introduce all of it
which is relevant to the part introduced, and any party may
introduce any other parts. (Sec. 4, Rule 23, ROC)
4. In an admiralty case filed by A against Y
Shipping Lines (whose principal offices are located in Manila)
in the Regional Trial Court, Davao City, the court issued a
subpoena duces tecum directing Y, the president of the
shipping company to appear and testify at the trial and to
bring with him several documents.
a. On what valid ground can Y refuse to comply with
the subpoena duces tecum?
b. How can A take the testimony of Y and present
the documents as exhibits other than through the subpoena
from the Regional Trial Court?
SUGGESTED ANSWER:
a. Y can refuse on the following grounds:
1) That he resides in Manila, which is located
more than 100 kilometers away from Manila, the place
where he is supposed to testify. (Sec. 10, Rule 21, ROC)
2) There is no showing of tender of fees for one
(1) days attendance and the kilometrage allowed under the
Rules.
b. Yes. A can take the testimony of Y and obtain the
documents through:
1) Taking As deposition through oral or written
interrogatories. (Rule 23, ROC)
2) A may file a motion for production or inspection
of documents. (Rule 27, ROC)
FILING OF THE ACTION
COMMENCEMENT OF THE ACTION
1. How is a civil action commenced ?
SUGGESTED ANSWER:
a. A civil action is commenced by the filing of the
original complaint in court.
b. If an additional defendant is impleaded in a later
pleading, the action is
1) commenced with regard to him on the date of
the filing of such later pleading,
2) irrespective of whether the motion for its
admission, if necessary,
3) is denied in court. (Sec. 5, Rule 1, ROC
arrangement and numbering supplied)
c. Upon payment of the proper docketing fees.
2. How is jurisdiction acquired by a court over
the person of the plaintiff in a special civil action for
mandamus ?
SUGGESTED ANSWER: Jurisdiction is acquired when he
files the action and pays the prescribed docket fees.
PAYMENT OF DOCKET FEES
1. Explain the effect of Sun Insurance on the
Manchester ruling.
SUGGESTED ANSWER: As will be noted, the requirement
in Circular No. 7 [of the Supreme Court which was issued based
on the Manchester that complaints, petitions, answers, and similar
pleadings should specify the amount of damages being prayed for
not only in the body of the pleading but also in the prayer, has not
been altered.
What has been revised is the rule that subsequent
amendment of the complaint or similar pleading will not thereby
vest jurisdiction in the Court, much less the payment of the docket
fee based on the amount sought in the amended pleading, the
trial court now being authorized to allow payment of the fee
within a reasonable time but in no case beyond the applicable
prescriptive period or reglementary period.
Moreover, a new rule has been added, governing the
awards of claims not specified in the pleading i.e., damages
arising after the filing of the complaint or similar pleading as to
which the additional filing fee therefore shall constitute a lien on
the judgment.
Now, under the Rules of Court, docket or filing fees are
assessed on the basis of the sum claimed, on the one hand, or
 73
the value of the property in litigation or the value of the estate, on
the other. (Philippine First Insurance Co., Inc., et al., v. Pyramid Logistics
and Trucking Corporation, etc., G. R. No. 165147, July 9, 2008)
2. Is the shortage of payment of the docketing fee a
ground for dismissing an action ?
SUGGESTED ANSWER: No. The shortage of payment of
the docketing fee, the same cannot be used as a ground for
dismissing the petition.
In Sun Insurance Office, Ltd. v. Asuncion, G.R. Nos. 79937-
38, February 13, 1989, 170 SCRA 274, 285. the Court held that
the strict regulations set in Manchester Development Corporation
v. Court of Appeals G.R. No. L-75919, May 7, 1987, 149 SCRA
562, that a court acquires jurisdiction over any case only upon
payment of the prescribed docket fees does not apply where the
party does not deliberately intend to defraud the court in payment
of docket fees, and manifests its willingness to abide by the rules
by paying additional docket fees when required by the court.
The liberal doctrine in Sun Insurance has been repeatedly
reiterated in Heirs of Bertuldo Hinog v. Melicor, G.R. No. 140954,
April 12, 2005, 455 SCRA 460, 475.; Proton Pilipinas Corporation
v. Banque Nationale de Paris G.R. No. 151242, June 15, 2005,
460 SCRA 260, 274-276. and Intercontinental Broadcasting
Corporation v. Alonzo-Legasto G.R. No. 169108, April 18, 2006,
487 SCRA 339, 347. and continues to be the controlling doctrine.
Since the deficiency in payment was not at all intentional, as there
was a willingness to comply with the rules when Spouses
Gutierrez remitted the deficiency by postal money order in their
Motion for Reconsideration, the Sun Insurance doctrine applies.
(Sps. Gutierrez v. Sps. Valienmte, et al., G. R. No. 166802, July 4,
2008)
It cannot be gainsaid that the emerging trend in the rulings
of this Court is to afford every party litigant the amplest opportunity
for the proper and just determination of his cause, free from the
constraints of technicalities. [Sps. Gutierrez, supra citing Peoso
v. Dona, G.R. No. 154018, April 3, 2007, 520 SCRA 232, 240;
Ginete v. Court of Appeals, 357 Phil. 36, 53 (1998)]
Technicality and procedural imperfection should thus not
serve as basis of decisions. (Spouses Gutierrez, supra citing
Composite Enterprises, Inc. v. Caparoso, G.R. No. 159919,
August 8, 2007, 529 SCRA 470, 480; Crystal Shipping, Inc. v.
Natividad, G.R. No. 154798, October 20, 2005, 473 SCRA 559,
566]
As has often been stated, it is far better to dispose of a
case on the merits which is a primordial end rather than on a
technicality, if it be the case, that may result in injustice. (Sps.
Gutierrez, supra citing Tan v. Dumarpa, G.R. No. 138777,
September 22, 2004, 438 SCRA 659, 665; Serrano v. Galant
Maritime Services, Inc., 455 Phil. 992, 998 (2003)]
3. What are the two situations that may arise
with regard to docketing fees, and what should be the
procedural resolution of each of the situations ?
SUGGESTED ANSWER: The two situations that may arise
are:.
One is where the complaint or similar pleading sets out a
claim purely for money or damages and there is no precise
statement of the amounts being claimed. In this event, the rule is
that the pleading will not be accepted nor admitted, or shall
otherwise be expunged from the record. In other words, the
complaint or pleading may be dismissed or the claims as to which
the amounts are unspecified may be expunged, although the court
may, on motion, permit amendment of the complaint and payment
of the fees provided the claim has not in the meantime become
time-barred.
The other is where the pleading does specify the amount of
every claim, but the fees paid are insufficient; and here again, the
rule now is that the court may allow a reasonable time for the
payment of the prescribed fees, or the balance thereof, and upon
such payment, the defect is cured and the court may properly take
cognizance of the action, unless in the meantime prescription has
set in and consequently barred the right of action. (Philippine First
Insurance Co., Inc., et al., v. Pyramid Logistics and Trucking Corporation,
etc., G. R. No. 165147, July 9, 2008 citing Tacay v. Regional Trial Court
of Tagum, Davao del Norte, G.R. Nos. 88075-77, December 20, 1989,
180 SCRA 433, 442-443)
4. What is the basis for the computation of docket
fees where the action is purely for recovery of money or
damages ?
SUGGESTED ANSWER: Where the action is purely for the
recovery of money or damages, the docket fees are assessed on
the basis of the aggregate amount claimed, exclusive only of
interests and costs.
In this case, the complaint or similar pleading should,
according to Circular No. 7 of the Supreme Court, specify the
amount of damages being prayed for not only in the body of the
pleading but also in the prayer, and said damages shall be
 74
considered in the assessment of filing fees in any case.
(Philippine First Insurance Co., Inc., et al., v. Pyramid Logistics and
Trucking Corporation, etc., G. R. No. 165147, July 9, 2008 citing Tacay v.
Regional Trial Court of Tagum, Davao del Norte, G.R. Nos. 88075-77,
December 20, 1989, 180 SCRA 433, 442-443)
5. What is the basis for assessing docketing
fees where the action involves real property and a related
claim for damages ?
SUGGESTED ANSWER: Where the action involves real
property and a related claim for damages as well, the legal fees
shall be assessed on the basis of both (a) the value of the property
and (b) the total amount of related damages sought.
The court acquires jurisdiction over the action if the filing of
the initiatory pleading is accompanied by the payment of the
requisite fee, or, if the fees are not paid at the time of the filing of
the pleading, as of the time of full payment of the fees within such
reasonable time as the court may grant, unless, of course,
prescription has set in the meantime. But where x x x the fees
prescribed for an action involving real property have been paid,
but the amounts of certain of the related damages (actual, moral
and nominal) being demanded are unspecified, the action may not
be dismissed. (Yuchengco v. Republic, etc., et al., G.R. No. 131127,
June 8, 2000)
6. A complaint filed for recovery of
possession of real property also prayed for moral and
exemplary damages the amounts of which have been left to
the courts discretion, and for actual damages the amount of
which shall be proven at the trial. The docket fees for the
action involving the real property have been paid, but not
those for the related damages, the counts of which have not
been specified.
a. Did the court acquire jurisdiction over the
action ?
SUGGESTED ANSWER: Yes, with respect to the real
property but not the claim for damages. Where the action involves
real property and a related claim for damages as well, the legal
fees shall be assessed on the basis of both (a) the value of the
property and (b) the total amount of related damages sought.
The court acquires jurisdiction over the action if the filing of
the initiatory pleading is accompanied by the payment of the
requisite fee, or, if the fees are not paid at the time of the filing of
the pleading, as of the time of full payment of the fees within such
reasonable time as the court may grant, unless, of course,
prescription has set in the meantime..
b. May the action be dismissed ?
SUGGESTED ANSWER: No. Where the fees prescribed
for an action involving real property have been paid, as in this
case, but the amounts of certain of the related damages (actual,
moral and nominal) being demanded are unspecified, the action
may not be dismissed. (Yuchengco v. Republic, etc., et al., G.R. No.
131127, June 8, 2000)
The court may allow a reasonable time for the payment of
the prescribed fees, or the balance thereof, and upon such
payment, the defect is cured and the court may properly take
cognizance of the action, unless in the meantime prescription has
set in and consequently barred the right of action.
7. Is the rule on the payment of docket fees in
ordinary civil actions the same as that for the claim of
damages which are impliedly instituted in criminal cases ?
SUGGESTED ANSWER: No because the court still obtains
jurisdiction despite the failure to pay docketing fees.
The filing fees for the civil liability against the accused, in
cases where the civil liability is instituted with the criminal case, by
way of moral, nominal, temperate, or exemplary damages or
without specifying the amount thereof in the complaint or
information the filing fees therefor shall constitute a first lien on the
judgment awarding such damages. (3rd par., Sec. 1 (a), Rule 111,
2000 ROCP)
Where the amount of damages, other than actual, is
specified in the complaint or information, the corresponding filing
fees shall be paid by the offended party upon the filing thereof in
court. (4th par., Ibid.)
In violation of B. P .Blg. 22 cases, where the criminal action
is deemed to include the corresponding civil action, Upon the filing
of the aforesaid joint criminal and civil actions, the offended party
shall pay in full the filing fee based on the amount of the check
involved which shall be considered as the actual damages
claimed. Where the complaint or information also seeks to
recover liquidated, moral, nominal, temperate or exemplary
damages, the offended party shall pay the filing fees based on the
amounts alleged therein. If the amounts are not so alleged but
any of these damages are subsequently awarded by the court, the
filing fees based on the amount awarded shall constitute a first lien
on the judgment. (2nd par., Sec. 1 (b), Rule 111, 2000 ROCP)
 75
Except as otherwise provided in these Rules, no filing fees
shall be required for actual damages. (5th par., Sec. 1 (a), Rule 111,
2000 ROCP)
RAFFLE AND ASSIGNMENT OF CASES
AFTER FILING OF THE ACTION AND
SERVICE OF SUMMONS
SUMMONS
1. Define summons.
SUGGESTED ANSWER: Summons is the means by which
the defendant in a case is notified of the existence of a case
against him and, thereby, the court is conferred jurisdiction over
the person of the defendant. (Millenium Industrial Commercial
Corporation v. Tan, G.R. No. 131724, February 28, 2000; Romuladez-
Licaros v. Licaros, G. R. No. 150656, April 29, 2003)
2. What is the purpose of service of summons ?
SUGGESTED ANSWER: The purpose of service of
summons:
a. For jurisdictional purposes which is acquired by
courts over the person of a party-defendant by virtue of the service
of summons in the manner required by law. (Pabon, et al., v.
National Labor Relations Commission, et al., G.R. No. 120457,
September 24, 1998)
b. To give notice to the defendant or respondent that an
action has been commenced against her. She is thus, put on
guard as to the demands of the plaintiff or petitioner. (Paramount
Insurance Corporation v. Luna, et al., 148 SCRA 569)
3. Is there any exception or instance where service
of summons is not for the purpose of obtaining jurisdiction ?
SUGGESTED ANSWER: Yes. Extraterritorial service of
summons to non-resident defendant where the action affects the
personal status of the plaintiff, or the subject of the defendant's
property in the Philippines. (Perkins v. Dizon, 69 Phil. 186) The
purpose is to comply with due process.
4. What is the effect of absence of summons
on the judgment rendered in a case?
SUGGESTED ANSWER: The absence of summons on a
judgment makes the judgment null and void because the court did
not have jurisdiction over the person on the defendant.
5. What is the effect of voluntary appearance by a
defendant who was not served with summons ?
. SUGGESTED ANSWER: The defendants voluntary
appearance in the action shall be equivalent to service of
summons.
The inclusion in a motion to dismiss of other grounds aside
from lack of jurisdiction over the person of the defendant shall not
be deemed a voluntary appearance. (Sec. 20, Rule 14, ROC,
paragraphing supplied)
6. When an additional defendant is impleaded in
the action, is it necessary that summons be served upon him
? Explain.
SUGGESTED ANSWER: Yes, so that the court could
obtain jurisdiction over his person. However, there may be no
need for summons if he voluntarily appeared and submitted
himself to the courts jurisdiction.
7. Is summons required to be served upon a
defendant who was substituted for the deceased ?
SUGGESTED ANSWER: No because it is the court which
orders him as the legal representative of the deceased to appear
and substitute the deceased. (Sec. 16, Rule 3, ROC)
8. How is jurisdiction acquired by a court over
the person of the defendant in an action for unlawful detainer
?
SUGGESTED ANSWER: Either through service of
summons or through his voluntary appearance.
9. How is jurisdiction over the defendant in a civil
case acquired ?
SUGGESTED ANSWER: Preliminarily, jurisdiction over the
defendant in a civil case is acquired either by the coercive power
of legal processes exerted over his person, or his voluntary
appearance in court. (Philippine Commercial and Industrial Bank v. Dy
Hong Pi, et al., G. R. No. 171137, June 5, 2009 citing Platinum Tours and
Travel, Incorporated v. Panlilio, G.R. No. 133365, September 16, 2003,
411 SCRA 142, 146)
 76
10. When is a defendant deemed to have voluntarily
submitted to the jurisdiction of the court ? Exemplify.
SUGGESTED ANSWER: As a general proposition, one
who seeks an affirmative relief is deemed to have submitted to the
jurisdiction of the court. (Philippine Commercial and Industrial Bank v.
Dy Hong Pi, et al., G. R. No. 171137, June 5, 2009 citing Sapugay v.
Court of Appeals, G.R. No. 86792, 21 March 1990, 183 SCRA 464, 471)
Thus, it has been declared that the filing of motions to
admit answer, for additional time to file answer, for reconsideration
of a default judgment, and to lift order of default with motion for
reconsideration, is considered voluntary submission to the courts
jurisdiction. (supra citing Galicia, et al. v. Manliquez, et al., G.R. No.
155785, April 13, 2007, 521 SCRA 85, 94; Hongkong and Shanghai
Banking Corporation Limited v. Catalan, G.R. No. 159590, October 18,
2004, 440 SCRA 498, 515; Herrera-Felix v. Court of Appeals, G.R. No.
143736, August 11, 2004, 436 SCRA 87, 93)
A voluntary appearance is a waiver of the necessity of a
formal notice. An appearance in whatever form, without explicitly
objecting to the jurisdiction of the court over the person, is a
submission to the jurisdiction of the court over the person. While
the formal method of entering an appearance in a cause pending
in the courts is to deliver to the clerk a written direction ordering
him to enter the appearance of the person who subscribes it, an
appearance may be made by simply filing a formal motion, or plea
or answer. This formal method of appearance is not necessary. He
may appear without such formal appearance and thus submit
himself to the jurisdiction of the court. He may appear by
presenting a motion, for example, and unless by such appearance
he specifically objects to the jurisdiction of the court, he thereby
gives his assent to the jurisdiction of the court over his person.
(supra citing Busuego v. Court of Appeals, G.R. No. L-48955, June 30,
1987 151 SCRA 376, 385 in turn citing Flores v. Zurbito, 37 Phil. 746,
750, emphasis supplied)
11. Under what condition may a party who seeks
affirmative relief is considered as not having submitted to the
jurisdiction of the court ? Explain.
SUGGESTED ANSWER: The rule that a party who seeks
affirmative relief is considered as having submitted to the
jurisdiction of the court is tempered by the concept of conditional
appearance, such that a party who makes a special appearance to
challenge, among others, the courts jurisdiction over his person
cannot be considered to have submitted to its authority. (Philippine
Commercial and Industrial Bank v. Dy Hong Pi, et al., G. R. No. 171137,
June 5, 2009 citing Hongkong and Shanghai Banking Corporation
Limited v. Catalan, id., 516; Casimina v. Legaspi, et al., G.R. No. 147530,
June 29, 2005, 462 SCRA 171, 180)
Prescinding from the foregoing, it is thus clear that:
a. Special appearance operates as an exception to the
general rule on voluntary appearance;
b. Accordingly, objections to the jurisdiction of the court
over the person of the defendant must be explicitly made, i.e., set
forth in an unequivocal manner; and
c. Failure to do so constitutes voluntary submission to
the jurisdiction of the court, especially in instances where a
pleading or motion seeking affirmative relief is filed and submitted
to the court for resolution.
For example, a motion that seeks a sole relief: inhibition of
the presiding judge from further hearing the case, an affirmative
relief other than dismissal of the case, is a manifestation of
voluntary submission to the courts jurisdiction. It is well-settled
that the active participation of a party in the proceedings is
tantamount to an invocation of the courts jurisdiction and a
willingness to abide by the resolution of the case, and will bar said
party from later on impugning the courts jurisdiction. (supra citing
Meat Packing Corporation of the Philippines v. Sandiganbayan, et al.,
G.R. No. 103068, June 22, 2001, 359 SCRA 409, 425)
METHODS OF SERVICE OF SUMMONS
1. What are the methods of service of summons ?
SUGGESTED ANSWER:
a. Personal
b. Substituted
c. Service by publication upon a
1) Resident defendant
2) Non-resident defendant
2. How is personal service of summons effected ?
SUGGESTED ANSWER: Whenever practicable, the
summons shall be served
a. by handing a copy thereof to the defendant in person,
or,
b. if he refuses to receive and sign for it, by tendering it
to him. (Sec. 6, Rule 14, ROC arrangement and numbering supplied)
3. How is substituted service of summons
made ?
 77
SUGGESTED ANSWER: If, for justifiable causes, the
defendant cannot be served within a reasonable time as provided
in the preceding section, service may be effected
a) by leaving copies of the summons at the defendants
residence with some person of suitable age and discretion then
residing therein, or
b) by leaving the copies at defendants office or regular
place of business with some competent person in charge thereof.
(Sec. 7, Rule 14, ROC arrangement supplied)
4. What is purpose of strictly following the order of
modes of service ?
SUGGESTED ANSWER: Modes of service should be
strictly followed in order that the court may acquire jurisdiction over
the person.
Thus, it is only when the defendant cannot be served
personally within a reasonable time that substituted service may
be allowed.
Impossibility of prompt, personal service should be shown
by stating in the proof of service that efforts were made to find the
defendant personally and that said efforts failed, hence the resort
to substituted service. Failure to faithfully, strictly, and fully comply
with the requirements of substituted service renders said service
ineffective.
For substituted service to be valid, the summons should be
left in the defendants residence with some person of suitable age
and discretion of suitable age and discretion then residing therein.
Thus, there was invalid service if made with the defendants son-
in-law who was not living in the same house as his parents-in-law,
although living in the same compound. (Sps. Miranda v. Court of
Appeals, etc., et al., G.R. No. 114243, February 23, 2000)
The statement of impossibility of service should be made in
the proof of service. This is necessary because substituted
service is in derogation of the usual method of service.
Substituted service is a method extraordinary in character, and
hence may be used only as prescribed in the circumstances
authorized by statute. Thus, the statutory requirements of
substituted service must be followed strictly, faithfully, and any
substituted service other than that authorized by the statute is
considered ineffective.
There is a presumption that a sheriff has regularly
performed his official functions in utilizing substituted service of
summons. To overcome the presumption arising from the sheriffs
certificate, the evidence must be clear and convincing. (Umandap v.
Judge Sabio, Jr., et al., G.R. No. 140244, August 29, 2000)
5. What is the purpose of reflecting failure of
personal service. in the return ?
SUGGESTED ANSWER: Substituted service is in
derogation of the usual method of service. It is a method
extraordinary in character and hence may be used only as
prescribed and under the circumstances authorized by statute.
(Ang Ping v. Court of Appeals, G.R. No. 126947, 310 SCRA 343 cited in
Hamilton v. Rey, et al., G.R. No. 139283, November 15, 2000)
6. A complaint for sum of money was filed. The return
showed that the summons were served upon the defendant
through his 21 year old daughter who was living with him. No
answers were filed within the reglementary period. A motion
to declare the defendant in default was filed. Rule on the
motion.
SUGGESTED ANSWER: Denied. There was no proper
substituted service of summons. The impossibility of personal
service was not shown in the return.
The modes of service should be strictly followed in order
that the court may acquire jurisdiction over the person. It is only
when a defendant cannot be served personally and within a
reasonable time that substituted service may be made. (Hamilton
v. Rey, et al., G.R. No. 139283, November 5, 2000)
7. How should service of summons be made
upon a domestic private entity ?
SUGGESTED ANSWER: When the defendant is a
corporation, partnership or association organized under the laws
of the Philippines with a juridical personality, service may be made
on the
a. president,
b. managing partner,
c. general manager,
d. corporate secretary,
e. treasurer, or
f. in-house counsel. (Sec. 11, Rule 14, ROC numbering
and arrangement supplied)
8. The AB Co., a corporation, has its principal
office in Manila. Its president lives in Pasay City. X, a
resident of New York, begins suit for P5 million against AB
Co., in the Regional Trial Court of the Fourth Judicial Region,
Rizal, having summons served personally on the defendants
 78
president at his home in Pasay. Will an objection to the
jurisdiction lie ?
SUGGESTED ANSWER: No because the summons was
properly served upon the president. The Rules do not require that
the summons must be served at the office of the president which
is in Manila.
NOTE: The question is asking about jurisdiction and not
venue.
9. How is service of summons effected on a defendant
Philippine resident temporarily abroad ?
SUGGESTED ANSWER:
a. Personal service outside the Philippines with leave of
court;
b. Publication, with leave of court, in a newspaper of
general circulation in such places and for such time as the court
may order in which case:
1) copy of the summons and order of the court
shall be sent by registered mail to the last known address of
the defendant, and
2) The order specifies a reasonable time, not less
than sixty (60) days after notice within which the defendant
must answer.
c. In any other manner the court may deem sufficient.
(Sec. 15 in relation to Sec. 16, both of Rule 14, ROC)
The above methods are also known as extraterritorial
service of summons and may be resorted to for actions in rem
or quasi in rem with leave of court.
10. When are the instances when extraterritorial
service, through personal service or publication, may be
resorted to with leave of court ?:
SUGGESTED ANSWER:
a. When the defendant does not reside and is not found
in the Philippines, and
1) The action affects the personal status of the
plaintiff or
2) The action relates to, or the subject of which is
property within the Philippines, is one in which the
defendant has or claims a lien or interest, actual or
contingent, or
3) The relief demanded in such action consists,
wholly or in part,. In excluding defend ant from any interest
therein, or
4) The property of the non-resident defendant has
been attached within the Philippines. (Sec. 15, Rule 14, ROC;
Romualdez-Licaros v. Licaros, G. R. No. 150656, April 29, 2003)
b. The above methods are resorted to where the action
is in rem or quasi in rem.
c. What gives the court jurisdiction is not jurisdiction
over the person but jurisdiction over the res, i.e.
1) Personal status of the plaintiff (not the
defendant) who is domiciled in the Philippines;
2) The property litigated; or
3) The property attached. (Valmonte, et al., v. Court
of Appeals, et al., G.R. No. 108538, January 22, 1996)
Personal status includes family relations, particularly the
relation between husband and wife. (Romualdez-Licaros v.
Licaros, G. R. No. 150656, April 29, 2003)
11. Give instances of INVALID extraterritorial
service under Sec. 15, Rule 14, Rules of Court.
SUGGESTED ANSWER:
a. No valid service in an action for partitioning and
accounting under Rule 69 of the Rules of Court (which is an action
quasi in rem), if made upon the husband, who is residing in the
Philippines, of a non-resident defendant not found in the
Philippines. Leave of court must be obtained and methods in Sec.
15, Rule 14, ROC must be followed.
The service upon the husband cannot be justified under the
last phrase of Sec. 15, Rule 14, ROC, which provides, "in any
manner the court may deem sufficient," because:
1) This mode of service like the first two (personal
and publication), must be made outside the Philippines,
such as through the Philippine Embassy in the foreign
country where the defendant resides;
2) No leave of court was obtained in the form of a
motion in writing, supported by affidavit of the plaintiff or
some other person in his behalf and setting forth the
grounds or the application. (Valmonte, et al., v. Court of
Appeals, et al., G.R. No. 108538, January 22, 1996)
b. Although the Supreme Court considered publication
in the Philippines of the summons (against the contention that it
should have been made in the foreign state where the defendant
was residing) sufficient, nonetheless the service was considered
insufficient because no copy of the summons was sent to the last
known correct address in the Philippines. (Sahagun v. Court of
Appeals, 198 SCRA 44)
 79
12. Give instances of VALID extra-
territorial service under Sec. 15, Rule 14, Rules of Court.
SUGGESTED ANSWER:
a. Service of summons on the husband was considered
valid because summons was served upon the defendant's
husband in their conjugal home. The wife was temporarily absent
because she was on vacation. (De Leon v. Hontanosa, 67 SCRA
458, 462-463)
b. Service on the wife of a nonresident defendant was
found to be sufficient because the defendant had appointed his
wife as his attorney-in-fact. (Gemperle v. Schenker, 125 Phil. 458)
13. What are the modes of effecting extraterritorial
service of summons?
SUGGESTED ANSWER:
a. By personal service out of the country, with leave of
court;
b. By publication and sending a copy of the summons
and order of the court by registered mail to the defendants last
known address, also with leave of court; or
c. By any other means the judge may consider
sufficient. (Romualdez-Licaros v. Licaros, G. R. No. 150656, April 29,
2003)
14. Give an example of means the judge may
consider sufficient.
SUGGESTED ANSWER: The Court Order required that
extraterritorial service was to be effected in the following manner:
xxx service of Summons by way of publication in a newspaper of
general circulation once a week for three (3) consecutive weeks,
at the same time, furnishing respondent copy of this Order as well
as the corresponding Summons and copy of the petition at her
given address at No.96 Mulberry Lane, Atherton, California,
U.S.A., thru the Department of Foreign Affairs, all at the
expense of petitioner. (Emphasis supplied)
The Process Servers Return shows that the summons
addressed to the respondent together with the complaint and its
annexes were sent by mail to the Department of Foreign Affairs
with acknowledgment of receipt. The Process Servers certificate
of service of summons is prima facie evidence of the facts set out
in the certificate. (Romualdez-Licaros v. Licaros, G. R. No. 150656,
April 29, 2003)
15. How is jurisdiction acquired by a court over
the person of a non-resident defendant who is not found in
the Philippines, in an action for compulsory acknowledgment
of his natural child ?
SUGGESTED ANSWER: Extraterritorial service, by means
of personal service or publication, with leave of court may be
resorted to because the defendant does not reside and is not
found in the Philippines, and the action affects the personal status
of the plaintiff.
16. Upon orders of the Quezon City court, summons by
publication was ordered in an action for quieting of title. The
publication was effected in the Metropolitan Newsweek a
local newspaper published in Kalookan City and Malolos.
Was there valid service of summons? Explain.
SUGGESTED ANSWER: No. The newspaper is not a
newspaper of general circulation in Quezon City.
The Rules strictly require that publication must be in a
newspaper of general circulation and in such places and for such
time as the court may order. (Sec. 14, Rule 14, ROC) The modes
of service of summons must be strictly followed in order that the
court may require jurisdiction over the respondents. The statutory
requirements of service of summons, whether personally, by
substituted service, or by publication, must be followed strictly,
faithfully and fully, and any mode of service other than that
prescribed by the statute is considered ineffective. (Paluwagan ng
Bayan Savings Bank v. King, 172 SCRA 60 cited in Pinlac, et al., v. Court
of Appeals et al., G.R. Nos. 121576-78, June 16, 2000)
17. Duraproof Services sued for damages various
parties including Banco do Brazil, a non-resident foreign
bank which was served summons through the ambassador of
Brazil to the Philippines as well as through publication. For
failure of Banco do Brazil to file its answer, it was declared in
default and judgment rendered against it awarding damages
in favor of the plaintiff. Did the court obtain jurisdiction over
Banco do Brazil ? Why ?
SUGGESTED ANSWER: No. The action is one that is in
personam because the plaintiff sought to recover damages for the
alleged commission of an injury to the person or property of the
plaintiff. Since the action is one in personam, personal or, if not
possible, substituted service of summons on the defendant, and
not extraterritorial service, in necessary to confer jurisdiction upon
the person of Banco do Brazil. (Banco do Brasil v. Court of Appeals,
et al., G.R. Nos. 121576-78, June 16, 2000)
 80
18. To what kinds of cases does extraterritorial
service of summons find application ?
SUGGESTED ANSWER: Extraterritorial service of
summons applicable only in actions in rem or quasi in rem.
Extraterritorial service of summons applies only where the
action is in rem, an action against the thing itself instead of against
the person, or in an action quasi in rem, where an individual is
named as defendant and the purpose of the proceeding is to
subject his interest therein to the obligation or loan burdening the
property.
This is so inasmuch as, in rem and quasi in rem actions,
jurisdiction over the person of the defendant is not a prerequisite
to confer jurisdiction on the court provided that the court acquires
jurisdiction over the res.
Any relief granted in rem or quasi in rem actions must be
confined to the res, and the court cannot lawfully render a
personal judgment against the defendant. (Banco do Brasil v. Court
of Appeals, et al., G.R. Nos. 121576-78, June 16, 2000)
PLAINTIFFs NOTICES, MOTIONS, ETC.
a. Notice of lis pendens
b. Notice to dismiss or withdraw complaint
c. Motion to amend or supplement the complaint.
NOTICE OF LIS PENDENS
1. What is notice of lis pendens ?
SUGGESTED ANSWER: It is a notice filed with the
Register of Deeds, which may be annotated on the certificate of
title to real property only when there is an action or proceeding in
court which affects title to or possession of said real property.
ALTERNATIVE SUGGESTED ANSWER: Lis pendens which
literally means pending suit refers to the jurisdiction, power or
control which a court acquires over the property involved in a suit,
pending the continuance of the action, and until final judgment . (J.
Casim Construction Supplies, Inc. v. Registrar of Deeds of Las Pinas,G.
R. No. 168655, July 2, 2010 citing St. Mary of the Woods School, Inc. v.
Office of the Registry of Deeds of Makati City, G.R. No. 174290 and G.R.
No. 176116, January 20, 2009, 576 SCRA 713, 730; Heirs of Eugenio
Lopez, Sr. v. Enriquez, G.R. No. 146262, January 21, 2005, 449 SCRA
173, 186; Romero v. Court of Appeals, G.R. No. 142406, May 16, 2005,
458 SCRA 483, 492)
2. What is the nature of notice of lis pendens. ?
SUGGESTED ANSWER: The doctrine of lis pendens is
founded upon reasons of public policy and necessity. It is an
announcement to the whole world that a particular real property is
in litigation. (Yared, et al., v. Hon. Ilarde, etc., et al., G.R. No. 1114732,
August 1, 2000)
3. What are the effects of a notice of lis pendens ?
SUGGESTED ANSWER: Its notice is an announcement
to the whole world that a particular property is in litigation and
serves as a warning that one who acquires an interest over said
property does so at his own risk, or that he gambles on the result
of the litigation over said property. [J. Casim Construction Supplies,
Inc. v. Registrar of Deeds of Las Pinas,G. R. No. 168655, July 2, 2010
citing Yared v. Ilarde, 391 Phil. 722, 730 (2000)]
A necessary incident of registering a notice of lis pendens
is that the property covered thereby is effectively placed, until the
litigation attains finality, under the power and control of the court
having jurisdiction over the case to which the notice relates. (Supra
citing Heirs of Eugenio Lopez, Sr. v. Enriquez, G.R. No. 146262, January
21, 2005, 449 SCRA 173, 186; Romero v. Court of Appeals, G.R. No.
142406, May 16, 2005, 458 SCRA 483, 495)
In this sense, parties dealing with the given property are
charged with the knowledge of the existence of the action and are
deemed to take the property subject to the outcome of the
litigation. (supra citing St. Mary of the Woods School, Inc. v. Office of
the Registry of Deeds of Makati City, G.R. No. 174290 and G.R. No.
176116, January 20, 2009, 576 SCRA 713, 730; Heirs of Eugenio Lopez,
Sr. v. Enriquez, G.R. No. 146262, January 21, 2005, 449 SCRA 173, 186;
Romero v. Court of Appeals, G.R. No. 142406, May 16, 2005, 458 SCRA
483, 492)
4. What is the purpose of notice of lis pendens ?
SUGGESTED ANSWER:
a. protect the rights of the party causing the registration
thereof, and
b. make known to the whole world that properties in
litigation are still within the power of the court until the litigation is
terminated and to prevent the defeat of the judgment or decree by
subsequent alienation. It serves as a warning that one who
acquires an interest in said property does so at his own risk, or
that he gambles on the result of the litigation over the property.
(Yared, et al., v. Hon. Ilarde, etc., et al., G.R. No. 1114732, August 1,
2000)
 81
ALTERNATIVE SUGGESTED ANSWER: Founded upon
public policy and necessity, lis pendens is intended to keep the
properties in litigation within the power of the court until the
litigation is terminated, and to prevent the defeat of the judgment
or decree by subsequent alienation. [J. Casim Construction Supplies,
Inc. v. Registrar of Deeds of Las Pinas,G. R. No. 168655, July 2, 2010
citing Heirs of Eugenio Lopez, Sr. v. Enriquez, G.R. No. 146262, January
21, 2005, 449 SCRA 173, 186; Romero v. Court of Appeals, G.R. No.
142406, May 16, 2005, 458 SCRA 483, 492 in turn citing Lim v. Vera
Cruz, 356 SCRA 386, 393 (2001)]
5. When are the instances where notice of lis
pendens is proper ?
SUGGESTED ANSWER: Rule 13, Section 14 of the 1997
Rules of Civil Procedure and Section 76 of Presidential Decree
No. 1529, otherwise known as the Property Registration Decree
provide the statutory basis for a notice of lis pendens. From these
provisions it is clear that such a notice is proper only in actions to:
a. Recover possession of real property
b. Quiet title thereto;
c. Remove clouds thereon;
d. Partition property; and
e. Any other proceedings of any kind in Court directly
affecting the title to the land or the use or occupation thereof or the
building thereon.
Thus, all the applicant has to do is to assert a claim of
ownership to put the property under the coverage of the rule. It is
not necessary for her to prove ownership or interest over the
property sought to be affected by lis pendens. (Yared, et al., v. Hon.
Ilarde, etc., et al., G.R. No. 1114732, August 1, 2000)
6. What are the grounds for lifting a notice of lis
pendens ?
SUGGESTED ANSWER:
a. If the annotation was for the purpose of molesting the
title of the adverse party; and
b. When the annotation is not necessary to protect the
title of the party who caused it to be recorded. (Lee Tak Sheng v.
Court of Appeals, et al., 292 SCRA 544)
7. How is a notice of lis pendens cancelled ?
SUGGESTED ANSWER: A notice of lis pendens, once
duly registered, may be cancelled by the trial court before which
the action involving the property is pending. This power is said to
be inherent in the trial court and is exercised only under express
provisions of law. [J. Casim Construction Supplies, Inc. v. Registrar of
Deeds of Las Pinas,G. R. No. 168655, July 2, 2010 citing St. Mary of the
Woods School, Inc. v. Office of the Registry of Deeds of Makati City, G.R.
No. 174290 and G.R. No. 176116, January 20, 2009, 576 SCRA 713,
730; Fernandez v. Court of Appeals, 397 Phil. 205, 216 (2000)]
Accordingly, Section 14, Rule 13 of the 1997 Rules of Civil
Procedure authorizes the trial court to cancel a notice of lis
pendens where it is properly shown that the purpose of its
annotation is for molesting the adverse party, or that it is not
necessary to protect the rights of the party who caused it to be
annotated. The power to cancel a notice of lis pendens is
exercised only under exceptional circumstances, such as: where
such circumstances are imputable to the party who caused the
annotation; where the litigation was unduly prolonged to the
prejudice of the other party because of several continuances
procured by petitioner; where the case which is the basis for the lis
pendens notation was dismissed for non prosequitur on the part of
the plaintiff; or where judgment was rendered against the party
who caused such a notation. In such instances, said notice is
deemed ipso facto cancelled. (Ibid., citing Fernandez v. Court of
Appeals, 397 Phil. 205, 216 (2000) at 217, in turn citing Regalado, Justice
Florenz D., Remedial Law Compendium, Vol. I, 5th Revised Edition, p.
145, 1988)
The power possessed by a trial court to cancel the notice
of lis pendens is said to be inherent as the same is merely
ancillary to the main action. (supra., citing Vda. de Kilayco v. Judge
Tengco, G.R. No. 45425 and G.R. No. 45965, March 27, 1992, 207 SCRA
600; Magdalena Homeowners Association, Inc. v. Court of Appeals, G.R.
No. 60323, April 17, 1990, 184 SCRA 325, 330)
The precautionary notice of lis pendens may be ordered
cancelled at any time by the court having jurisdiction over the main
action inasmuch as the same is merely an incident to the said
action. [supra citing Vda. de Kilayko v. Judge Tengco, Supra; Heirs of
Maria Marasigan v. Intermediate Appellate Court, G.R. No. L-69303, July
23 1987, 152 SCRA 253. and Tanchoco v. Aquino, 238 Phil. 1 (1987)]
The notice of lis pendens x x x is ordinarily recorded
without the intervention of the court where the action is pending.
The notice is but an incident in an action, an extrajudicial one, to
be sure. It does not affect the merits thereof. It is intended merely
to constructively advise, or warn, all people who deal with the
property that they so deal with it at their own risk, and whatever
rights they may acquire in the property in any voluntary transaction
are subject to the results of the action, and may well be inferior
and subordinate to those which may be finally determined and laid
down therein. The cancellation of such a precautionary notice
is therefore also a mere incident in the action, and may be
 82
ordered by the Court having jurisdiction of it at any given
time. x x x (J. Casim Construction Supplies, Inc. v. Registrar of Deeds
of Las Pinas,G. R. No. 168655, July 2, 2010 citing Heirs of Eugenio
Lopez, Sr. v. Enriquez, G.R. No. 146262, January 21, 2005, 449 SCRA
173, 186 in turn citing Magdalena Homeowners Association, Inc. v. Court
of Appeals Vda. de Kilayco v. Judge Tengco, G.R. No. 45425 and G.R.
No. 45965, March 27, 1992, 207 SCRA 600; Magdalena Homeowners
Association, Inc. v. Court of Appeals, G.R. No. 60323, April 17, 1990, 184
SCRA 325, 330, emphasis supplied)
8. What is the remedy where Register of Deeds denies
registration of a notice of lis pendens ?
SUGGESTED ANSWER: Under P.D. No. 1529, the
Property Registration Decree of 1978, the Register of Deeds
may deny registration of the notice of lis pendens which denial
may be appealed by the applicant en consulta (Section 10,
paragraph 2) to the Commissioner of Land Registration. (AFP Mutual
Benefit Association, Inc. v. Court of Appeals, et al., G.R. No. 104769;
Solid Homes, Inc. v. Investco, Inc., G.R. No. 135016, March 3, 2000)
9. What is the remedy where cancellation of notice
of lis pendens was not brought before the proper court ?
SUGGESTED ANSWER: The action for cancellation of
the notice of lis pendens should not be filed via an original action
but rather, as an incident before the Regional Trial Court in which
the annulment case in relation to which its registration was sought.
Thus, it is the latter court that has jurisdiction over the main case
referred to in the notice and it is that same court which exercises
power and control over the real property subject of the notice.
But even so, the court of origin could not be effect the
cancellation anymore inasmuch as the decision rendered in the
annulment case has already attained finality before both the Court
of Appeals and the Supreme Court on the appellate level, unless
of course there exists substantial and genuine claims against the
parties relative to the main case subject of the notice of lis
pendens. [J. Casim Construction Supplies, Inc. v. Registrar of Deeds of
Las Pinas,G. R. No. 168655, July 2, 2010 with a note to see
Garchitorena v. Director of Lands, 91 Phil. 157 (1952)], where the Court
suggested that an original action be brought for the cancellation of
the notice of lis pendens in that case because the parties
appeared to have substantial claims against each other relative to
the civil case which is the subject of the notice] The precautionary
notice of lis pendens that has been registered relative to the
annulment case then pending before the RTC has served its
purpose. With the finality of the decision therein on appeal, the
notice has already been rendered functus officio. The rights of the
parties, as well as of their successors-in-interest, in relation to the
subject property, are hence to be decided according the said final
decision.
To be sure, a specific remedy that may be pursued is not
altogether precluded, only that the suitable course of action legally
available is not judicial but rather administrative. Section 77 of
P.D. No. 1529 provides the appropriate measure to have a notice
of lis pendens cancelled out from the title, that is by presenting to
the Register of Deeds, after finality of the judgment rendered in the
main action, a certificate executed by the clerk of court before
which the main action was pending to the effect that the case has
already been finally decided by the court, stating the manner of the
disposal thereof. Section 77 materially states:
SEC. 77. Cancellation of lis pendens. Before final
judgment, a notice of lis pendens may be cancelled upon order of
the court, after proper showing that the notice is for the purpose of
molesting the adverse party, or that it is not necessary to protect
the rights of the party who caused it to be registered. It may also
be cancelled by the Register of Deeds upon verified petition of the
party who caused the registration thereof.
At any time after final judgment in favor of the defendant, or
other disposition of the action such as to terminate finally all
rights of the plaintiff in and to the land and/or buildings
involved, in any case in which a memorandum or notice of lis
pendens has been registered as provided in the preceding
section, the notice of lis pendens shall be deemed cancelled
upon the registration of a certificate of the clerk of court in
which the action or proceeding was pending stating the
manner of disposal thereof. (cited in J. Casim Construction
Supplies, Inc. v. Registrar of Deeds of Las Pinas,G. R. No. 168655, July
2, 2010, emphasis supplied)
10. Investco sold to Solid Homes, Inc., a parcel of
land on installments. As a result of the alleged failure of
Solid Homes, Inc., to pay because its postdated checks
bounced, Investco sued Solid Homes. In its answer Solid
Homes alleged the purchase price was not yet due, and in
fact exceeded the installment payments. It prayed for
dismissal of the complaint and interposed a counterclaim for
the refund of excess payments, moral damages and
attorneys fees. It then filed with the Register of Deeds a
notice of lis pendens which was entered in the primary Entry
Book, but not on Investcos titles.
 83
The trial court rendered judgment in favor of Investco. Upon such notice being filed, the court shall issue an order
Subsequently, Investco sold the property to AFPMBAI, who confirming the dismissal. (1st two sentences, Sec. 1, Rule 17, ROC)
upon verification from the Register of Deeds found that there The dismissal by mere notice is without prejudice. (last
were no liens on the title. The Register of Deeds issued sentence, Sec. 1, Rule 17, ROC)
clean TCTs in the name of AFPMBAI which contained no
annotation of any lien, encumbrance, or adverse claim by a 2. When is dismissal with prejudice ?
third party. a. The order states that the dismissal is with prejudice.
Solid Homes, after discovery of the sale to AFPMBAI (last sentence, Sec. 1, Rule 17, ROC)
filed suit against the Register of Deeds, Investco and b. Application of the Two Dismissal Rule: A notice
AFPMBAI for annotation of lis pendens and damages. Will operates as an adjudication upon the merits when filed by a
the suit prosper ? plaintiff who has once dismissed in a competent court an action
SUGGESTED ANSWER: No. A notice of lis pendens is not based on or including the same claim. (Ibid.)
and cannot be sought as a principal action for relief.
The notice is but an incident to an action, an extra-judicial MOTION TO AMEND OR SUPPLEMENT
one to be sure. It does not affect the merits thereof. It is intended
merely to constructively advise, or warn, all people who deal with 1. What are the kinds of amendments to pleadings ?
the property that they so deal with it at their own risk, and SUGGESTED ANSWER:
whatever rights they may acquire in the property in any voluntary a. Amendments as a matter of right.
transaction are subject to the results of the action, and may well b. Amendments by leave of court.
be inferior and subordinate to those which ma be finally c. Formal amendments.
determined and laid own therein. d. Amendment to conform to or authorize presentation
The notice of lis pendens that real property is involved in of evidence.
an action is ordinarily filed in actions involving real property and
recorded without the intervention of the court where the action is 2. When may amendments be made as a
pending. As a settled rule, notice of lis pendens may be annotated matter of right ?
only when there is an action or proceeding in court which affects SUGGESTED ANSWER:
title to or possession of real property. a. A party may amend his pleading once as a matter of
In this case, the action was for collection of unpaid right before a responsive pleading is served.
installments on the purchase of subject property and Solid Homes b. In case of a reply, at anytime within ten (10) days
claim for damages. In such case, the annotation of a notice of lis after it is served. (Sec. 2, Rule 10, ROC arrangement and numbering
pendens was not proper, as the action was in personam. (AFP supplied)
Mutual Benefit Association, Inc. v. Court of Appeals, et al., G.R.
No. 104769; Solid Homes, Inc. v. Investco, Inc., G.R. No. 135016, 3. When may amendment by leave of court be
March 3, 2000) made ?
SUGGESTED ANSWER: (S)ubstantial amendments may
NOTICE TO DISMISS OR WITHDRAW be made
a. only upon leave of court.
COMPLAINT b. But such leave may be refused
1) if it appears to the court
1. May the plaintiff dismiss his complaint by mere 2) that the motion was made with intent to delay.
notice to the court ? Orders of the court upon the matters provided in this section
SUGGESTED ANSWER: Yes. A complaint may be shall be made upon motion filed in court, and after notice to the
dismissed by the plaintiff by filing a notice of dismissal at any time adverse party, with an opportunity to be heard. (Sec. 3, Rule 10,
before service of the answer or of motion for summary judgment. ROC)
 84
4. When is a cause of action considered as
substantially altered ?
SUGGESTED ANSWER: In determining whether a
different cause of action is introduced by amendments to the
complaint, what must be ascertained is whether the defendants
shall be required to answer for a liability or legal obligation wholly
different from that stated in the original complaint. (Que v. Court of
Appeals, et al., G.R. No. 135442, August 31, 2000)
5. When is a cause of action NOT considered
as substantially altered ?
SUGGESTED ANSWER: An amendment will not be
considered as stating a new cause of action if the fact alleged in
the amended complaint shows substantially the same wrong with
respect to the same matter but is more fully and differently stated,
or where averments which were implied are made express, or the
subject of the controversy or the liability sought to be enforced
remains the same. (Que v. Court of Appeals, et al., G.R. No. 135442,
August 31, 2000)
6. After an answer has been filed, can the plaintiff
amend his complaint, with leave of court, by changing
entirely the nature of the action ?
SUGGESTED ANSWER: Yes, the present rules allow
amendments substantially altering the nature of the cause of
action. (Sec. 3, Rule 10, ROC; Heirs of Pagobo v. Court of Appeals, et
al., 280 SCRA 870)
The substantial amendments would be allowed only when
the substantial change or alteration in the cause of action or
defense shall serve the higher interests of substantial justice and
prevent delay and equally promote the laudable objective of the
rules which is to secure a just, speedy and inexpensive disposition
of every action and proceeding. (Valenzuela v. Court of Appeals, et
al., 363 SCRA 779)
7. When are amendments not allowed ?
SUGGESTED ANSWER:
a. The amendment is for the purpose of delay. (Sec. 3,
Rule 10, ROC; Paman v. Diaz, 116 SCRA 125)
b. Formal amendments which cause prejudice to the
adverse party. (Sec. 4, Rule 10, ROC)
c. That the cause of action or defense or theory of the
case is, substantially changed (Torres v. Tomacruz, 49 Phil. 913), but
this is not an inflexible limitation because pleadings may be
amended or supplemented even if there are substantial changes
as long as the purpose of the amendment or supplementation is
not for delay.
d. That the amendment shall result in alteration of a
final judgment on a substantial matter. (Ocampo v. Manalac, 92 Phil.
860)
e. That the amendment is for the purpose of making the
complaint confer jurisdiction upon the court where none existed
before. (Rosario v. Carandang, 96 Phil. 845)
f. That the amendment is for the purpose of curing a
premature or non-existing cause of action. (Calabig v. Villanueva,
135 SCRA 307)
8. Under what conditions may formal amendments
be made at any state of the proceedings ?
SUGGESTED ANSWER: Formal amendments may be
made at any stage of the proceedings provided no prejudice is
caused to the adverse party. A defect in the designation of the
parties and other clearly clerical or typographical errors
1) may be summarily corrected by the court
2) at any stage of the action,
a) at its initiative or
b) on motion,
3) provided no prejudice is caused thereby to the
adverse party. (Sec. 4, Rule 10, ROC arrangement and
numbering supplied)
9. What is the effect of amended pleadings ?
SUGGESTED ANSWER:
a. An amended pleading supersedes the pleading that it
amends.
b. However, admissions in superseded pleadings may
be received in evidence against the pleader.
c. Claims or defenses alleged in the superseded
pleading not incorporated in the amended pleading shall be
deemed waived. (Sec. 8, Rule 10, ROC arrangement and numbering
supplied)
10. Does the filing of amended pleadings
retroact to the date of the filing of the original ? Is there any
exception to this rule ?
SUGGESTED ANSWER: No. The settled rule is that the
filing of an amended pleading does not retroact to the date of the
filing of the original; hence, the statute of limitation runs until the
 85
submission of the amendment. (Wallem Philippines, Shipping, Inc. v.
S.R. Farms, G. R. No. 161849, July 9, 2010 citing Republic v.
Sandiganbayan, G.R. No. 119292, July 31, 1998, 293 SCRA 440, 466)
It is true that, as an exception, this Court has held that an
amendment which merely supplements and amplifies facts
originally alleged in the complaint relates back to the date of the
commencement of the action and is not barred by the statute of
limitations which expired after the service of the original complaint.
(supra citing Verzosa v. Court of Appeals, G.R. Nos. 119511-13,
November 24, 1998, 299 SCRA 100, 111; Sunga v. Commission on
Elections, G.R. No. 125629, March 25, 1998, 288 SCRA 76, 85) The
exception, however, would not apply to the party impleaded for the
first time in the amended complaint.(supra citing Seno v.
Mangubat, G.R. No. L-44339, December 2, 1987, 156 SCRA 113, 122;
Republic v. Sandiganbayan, G.R. Nos. 112708-09, March 29, 1996, 255
SCRA 438, 490)
The rule on the non-applicability of the curative and
retroactive effect of an amended complaint, insofar as newly
impleaded defendants are concerned. (supra citing Aetna Insurance
Co. v. Luzon Stevedoring Corporation. G.R. No. L-25266, January 15,
1975, 62 SCRA 11) In the said case, the defendant Barber Lines
Far East Service was impleaded for the first time in the amended
complaint which was filed after the one-year period of prescription.
The order of the lower court dismissing the amended complaint
against the said defendant on ground of prescription was affirmed
by the Supreme Court.
Thus, if a party was only impleaded in the amended
Complaint of June 7, 1993, or one (1) year, one (1) month and
twenty-three (23) days from April 15, 1992, the date when the
subject cargo was fully unloaded from the vessel. Hence,
reckoned from April 15, 1992, the one-year prescriptive period had
already lapsed. (Wallem, supra)
Exception: Amendments impleading new defendants
retroact to the date of the filing of the complaint. REASON: They
do not constitute a new cause of action. (Verzosa v. Court of
Appeals, 299 SCRA 100) In such case, prescription does not apply if
at the time of the amendment prescription has set.
NOTES AND COMMENTS: Contra. The amendments do
not retroact even if new defendants are impleaded. If an
additional defendant is impleaded in a later pleading, the
action is commenced with regard to him on the date of filing
of such later pleading, irrespective of whether the motion for
its admission, if necessary, is denied by the court. (2
nd
sentence, Sec. 5, Rule 1, ROC) In this case prescription may set
if the action has prescribed at the time the new defendants are
impleaded.
Reconciliation. The contra is more in consonance with
orderly proceedings and substantial justice. The new defendants
should not be prejudiced by the procedural errors of the
complainant.
11. What about a supplemental pleading, does it
retroact to the date of the filing of the original pleading ?
SUGGESTED ANSWER: Yes. An amendment which
merely supplements and amplifies facts originally alleged in the
complaint relates back to the date of the commencement of the
action and is not barred by the statute of limitations which expired
after service of the original complaint. (Republic of the Philippines,
etc., v. Sandiganbayan, et al., G.R. No. 119292, July 31, 1998)
However, such rule does not apply to a party who is
impleaded for the first time in the amended complaint that was
filed beyond the prescriptive period. (Ibid.)
12. X, an illegitimate child of Y, celebrated her
th
18 birthday on May 2, 2004. A month before her birthday, Y
died. The legitimate family of Y refused to recognize X as an
illegitimate child of Y. After countless efforts to convince
them, X filed on April 25, 2008 an action for recognition
against Z, wife of Y. After Z filed her answer on August 14,
2008, X filed a motion for leave to file an amended complaint
impleading the three (3) legitimate children of Y. The trial
court admitted the amended complaint on August 22, 2008.
What is the effect of the admission of the amended complaint
? xxx Explain.
SUGGESTED ANSWER: The admission of the amendment
should not prejudice the new defendants because at the time the
amended suit was filed, the action against them for recognition
has already prescribed.
If an additional defendant is impleaded in a later pleading,
the action is commenced with regard to him on the date of filing of
such later pleading, irrespective of whether the motion for its
admission, if necessary, is denied by the court. (2nd sentence, Sec.
5, Rule 1, ROC)
13. Within what period of time should an answer to
an amended complaint be filed ?
SUGGESTED ANSWER:
 86
a. Amendment as a matter of right. Where the plaintiff c. Amended pleadings include matters which were
files an amended complaint as a matter of right, the defendant already in existence when the original pleadings were prepared
shall answer the same within fifteen (`15) days after being served WHILE the matters covered by a supplemental pleading occurred
with a copy thereof. (1st par., Sec. 3, Rule 11, ROC) after the filing of the original pleading.
b. Amendment not a matter of right. Where its filing is
not a matter of right, the defendant shall answer the amended
complaint within ten (10) days from notice of the order admitting
AFTER SERVICE OF SUMMONS
the same.(1st sentence, 2nd par., Sec. 3, Rule 13, ROC) BEFORE ANSWER AND ANSWER
c. Effect of earlier answer. An answer earlier filed may
serve as the answer to the amended complaint if no new answer is
filed. (2nd sentence, 2nd par., Sec. 3, rule 13, ROC) PLAINTIFF's NOTICES, MOTIONS, ETC.
This Rule shall apply to the answer to an amended
counterclaim, amended cross-claim, amended third (fourth, etc.) a. Notice to withdraw or dismiss the complaint. Refer to
party complaint, and amended complaint-in-intervention. (3rd par., previous discussion.
Sec. 3, Rule 13, ROC) b. Motion to amend or supplement the complaint. Refer
to previous discussion.
14. Is it necessary to file an amended answer to an c. Opposition to the defendant's various motions.
amended complaint ? d. Motion to declare defendant in default.
SUGGESTED ANSWER: It may not be necessary to file an
amended answer to an amended complaint because an answer
earlier filed may serve as the answer to the amended complaint if MOTION TO DECLARE IN DEFAULT
no new answer is filed. (2nd sentence, 2nd par., Sec. 3, Rule 13, ROC)
1. What are the grounds for declaration of
15. What is the purpose of supplemental pleadings ? default ?
SUGGESTED ANSWER: By the very nature of a SUGGESTED ANSWER:
supplemental pleading, it only seeks to reinforce and augment the a. Failure of a defending party to answer within the time
allegations contained in the principal pleading. It does not serve to allowed. (Sec. 3, Rule 9, ROC) This includes failure to answer a
supplant that which it supplements; rather, it ought to co-exist with complaint, permissive counterclaim, cross-claim, third-party
the latter. Further, the admission of a supplemental pleading is complaint, etc.
not something that parties may impose upon the court for we have b. Wilful failure to appear before an officer to make a
consistently held that its admittance is something which is deposition, after being served with a proper notice, or failure to
addressed to the discretion of the court. (Macasaet, et al., v. People, serve answers after proper service of interrogatories. (Sec. 5, Rule
G. R. No. 156747, February 23, 2005) 29, ROC)

16. Distinguish amended pleadings FROM 2. When may a party be declared in default ?
supplemental pleadings. SUGGESTED ANSWER: A party may be declared in
SUGGESTED ANSWER: default upon motion with notice and proof of showing of his
a. An amended pleading supersedes the original a. failure to file an answer within the reglementary
pleading WHILE a supplemental pleading merely adds to the period to a complaint, permissive counter-claim, cross-claim, third-
original pleading. party complaint (Sec. 3, Rule 9, ROC), or of his
b. An amended pleading does not retroact as it b. failure to appear before an officer to make a
supersedes the original WHILE a supplemental pleading would deposition, after being served with a proper notice, or failure to
have a retroactive effect. serve answers after proper service of interrogatories. (Sec. 5, Rule
29, ROC)
 87
3. What are the effects of declaration of
default ?
SUGGESTED ANSWER:
a. The court shall, upon motion of the claiming party
with notice to the defending party, and upon proof of such failure,
declare the defending party in default. Thereupon, the court shall
proceed to render judgment granting the claimant such relief as
his pleading may warrant. (1st par., Sec. 3, Rule 9, ROC)
b. The court may, in its discretion, require the claimant
to submit evidence before rendering judgment. Such reception of
evidence may be delegated to the clerk of court. (Ibid.)
c. A judgment rendered against a party in default shall
not exceed the amount or be different in kind from that prayed for
nor award unliquidated damages. (Sec. 3 [d], Rule 9, ROC)
d. A party in default shall be entitled to notice of
subsequent proceedings but not to take part in the trial. (Sec. 3 [a],
Rule 9, ROC)
4. What is the nature and effects of a judgment of
default ?
SUGGESTED ANSWER: A judgment of default does not
imply a waiver of rights except that of being heard and presenting
evidence in defendants favor. It does not imply admission by the
defendant of the facts and causes of action of the plaintiff,
because the codal section requires the latter to adduce evidence
(NOTES AND COMMENTS: Reception of evidence is now
st
discretionary under the 1997 Rules, 1 par., Sec. 3, Rule 9), in
support of his allegations as an indispensable condition before
final judgment could be given in his favor. Nor could it be
interpreted as an admission by the defendant that the plaintiffs
causes of action find support in the law or that the latter is entitled
to the relief prayed for.
This is especially true with respect to a defendant who had
filed his answer but had been subsequently declared in default for
failing to appear at the trial since he has had an opportunity to
traverse, via his answer, the material averments contained in the
complaint. Such defendant has a better standing than a
defendant who has neither answered nor appeared at trial. The
former should be allowed to reiterate all affirmative defenses
pleaded in his answer before the Court of Appeals. Likewise, the
Court of Appeals may review the correctness of the valuation of
the plaintiffs evidence by the lower court. (Monarch Insurance Co.,
Inc., et al., v. Court of Appeals, et al., G.R. No. 92735; Allied Guarantee
Insurance Co., v. Court of Appeals, G.R. No. 94867; Equitable Insurance
Corporation v. Court of Appeals, etc., et al., G.R. No. 95578, June 8,
2000)
5. What are the remedies of a party declared
in default ?
SUGGESTED ANSWER:
a. A party declared in default may at any time after
discovery thereof and before judgment, file a motion, under
oath, to set aside the order of default upon proper showing that:
1) His failure to answer was due to fraud,
accident, mistake or excusable negligence, and
2) That he has a meritorious defense. (Sec. 3 [b],
Rule 9, ROC)
He may also file a special civil action for certiorari if the
declaration of default was done with grave abuse of discretion.
b. 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 motion for new trial
under Sec. 1 [a], Rule 37, ROC.
c. If the defendant discovered the default after the
judgment has become final and executory, he may file a
petition for relief under Sec. 1, Rule 38, ROC.
d. He may also appeal the judgment rendered against
him as contrary to the evidence or to the law, even if no petition to
set aside the order or default has been presented by him. (Sec. 2,
Rule 41, ROC)
6. Is an order of default appealable ?
SUGGESTED ANSWER: Order of default is not appealable.
The order is interlocutory because the court has still to render
judgment by default. (Vda. De Hoyo-a, et al., v. Virata, et al., 137
SCRA 758, 780)
Order denying a motion to set aside order of default is
appealable An order denying a motion to set aside an order of
default, not being interlocutory but final is immediately appealable.
(Rodriguez, Jr. v. Intermediate Appellate Court, et al., 148 SCRA 612)
7. Mario was declared in default but before
judgment was rendered, he decided to file a motion to set
aside the order of default.
a. What should Mario state in his motion in order to
justify the setting aside of the order of default?
b. In what form should such motion be ?
SUGGESTED ANSWER:
 88
a. He should state in his motion to set aside the order of MOTION FOR EXTENSION OF TIME TO
default that:
1) His failure to answer was due to fraud, accident, PLEAD OR RESPOND
mistake or excusable negligence, and
2) That he has a meritorious defense. (Sec. 3[b], Rule 1. What are the different periods within which
9, ROC) to file an answer or responsive pleading ?
b. The motion should be under oath. (Ibid.) SUGGESTED ANSWER:
a. Within a period fixed by the court
8. For failure of KJ to file an answer within the 1. Answer to the complaint (Sec. 1, Rule 11, ROC)
reglementary period, the Court, upon motion of LM, declared 2. Answer to supplemental complaint. (Sec. 7,
KJ in default. In due time, KJ filed an unverified motion to lift Rule 11, ROC)
the order of default without an affidavit of merit attached to it. 3. Answer to complaint-in-intervention. (Sec. 4,
KJ however attached to the motion his answer under oath, Rule 19, ROC)
stating in said answer his reasons for his failure to file an b. Within ten (10) days
answer in time, as well as his defenses. Will the motion to lift 1. From notice of admission of order admitting
order of default prosper? Explain. amended complaint.
SUGGESTED ANSWER: Yes. There is substantial Answer to amended complaint, amended
compliance with the requirement of an affidavit of merit. The counterclaim, amended cross-claim, amended third (fourth,
answer attached to the motion was verified, and contained what etc) - party complaint and amended complaint-in-
should have been included in a verified motion to lift order of intervention, where amendment is not a matter of right. (2nd
default, i.e. the defenses and good cause for failure to seasonably and 3rd pars.., Sec. 3, Rule 11, ROC)
file the answer. 2. From service. Answer to counterclaim or
There is no need for a separate affidavit of merit if the cross-claim. (Sec. 4, Rule 11, ROC)
verified motion already incorporates and shows the valid defenses. 3. From service of pleading responded to. Reply.
(Gapuz v. Court of Appeals, et al., 233 SCRA 471; Mago v. Court of (Sec. 6, Rule 11, ROC)
Appeals, et al., 303 SCRA 600) 4. From notice of order admitting supplemental
complaint. Answer to supplemental complaint. (Sec. 7, Rule
DEFENDANT's MOTIONS, PLEADINGS, ETC. 11, ROC)
c. Within fifteen (15) days
1. After service of summons. Answer (Sec. 1,
a. Motions Rule 11, ROC)
1. For extension of time to plead or respond 2. After defendant served with copy of amended
2. To expunge the complaint or portions thereof. complaint as a matter of right. Answer to amended
3. For bill of particulars. complaint. (1st par., Sec. 3, Rule 11, ROC)
4. To dismiss. 3. From notice of the order admitting a complaint-in-
5. To lift order of default. Refer to previous intervention. Answer to a complaint-in-intervention. (Sec. 4,
discussion. Rule 19, ROC)
b. Pleadings d. Within thirty (30) days
1. Answer. 1. After receipt of summons by government
2. Counterclaim. official designated by law to receive summons on a
3. Cross-claim. defendant foreign private juridical entity. Answer. (Sec. 2,
4. Third party complaint. Rule 11, ROC)
c. Others e. Not less than sixty (60) days
1. Opposition to plaintiff's various motions. 1. After notice of order granting extraterritorial
service of summons or by publication when the defendant
 89
does not reside and is not found in the Philippines. (Sec. 15, a. If the order is not obeyed, or in case of insufficient
Rule 14, ROC) compliance therewith,
b. the court may order
MOTION TO EXPUNGE c. the striking out of the pleading or the portions thereof
to which the order was directed or
1. How may a pleading or any matter contained therein d. make such order as it deems just. (Sec. 4, Rule 12,
ROC, arrangement and numbering supplied)
be stricken out ?
SUGGESTED ANSWER:
a. Upon motion made by a party before responding to a MOTION TO DISMISS
pleading or,
b. if no responsive pleading is permitted by these Rules 1. What are the grounds for a motion to
of Court , dismiss an action ?
c. upon motion made by a party within twenty (20) days SUGGESTED ANSWER: Grounds for a motion to dismiss.
after the service of the pleading upon him, or a. That the court has no jurisdiction over the person of
d. upon the court's own initiative at any time, the defending party.
e. the court may order any pleading to be stricken out or b. That the court has no jurisdiction over the subject
that any sham or false, redundant, immaterial, impertinent, or matter of the claim.
scandalously matter be stricken out therefrom. (Sec. 12, Rule 8, c. That venue is improperly laid.
ROC numbering and arrangement supplied) d. That the plaintiff has no legal capacity to sue.
e. That there is another action pending between the same
MOTION FOR BILL OF PARTICULARS parties for the same cause.
f. That the cause of action is barred by a prior judgment
1. Explain the nature and procedure for a bill or by the statute of limitations.
of particulars. g. That the pleading asserting the claim states no cause of
SUGGESTED ANSWER: action.
a. When filed. Before responding to a pleading. If a h. That the claim or demand set forth in the plaintiff's
pleading is a reply, the motion must be filed within ten (10) days pleading has been paid, waived, abandoned, or otherwise
from service. extinguished.
b. Grounds. The party may move for a definite i. That the claim on which the action is founded is
statement or bill of particulars of any matter which is not averred unenforceable under the provisions of the statute of frauds.
with sufficient definiteness or particularity to enable him properly to j. That a condition precedent for filing the claim has not
prepare his responsive pleading. been complied with. (Sec. 1, Rule 16, ROC)
Such motion shall point out the defects complained of, the
paragraphs wherein they are contained, and the details desired. 2. What is a preliminary question ?
c. Action of court. SUGGESTED ANSWER: A preliminary question is one that
1) Deny the motion, or must be decided before the court proceeds to trial because it is a
2) Grant it outright, or ground for a motion to dismiss the complaint. The preliminary
3) Allow the parties to be heard. (Sec. 1, Rule 10, questions are also the grounds for a motion to dismiss.
ROC) A preliminary question may be raised in a motion to dismiss
the complaint.
2. What is the effect of non-compliance with
order for bill of particulars ? 3. When should a motion to dismiss be filed ?
SUGGESTED ANSWER: SUGGESTED ANSWER: The period to file a motion to
dismiss depends upon the circumstances of the case. Section 1
 90
of Rule 16 of the Rules of Court requires that, Within the time for
but before filing the answer to the complaint or pleading asserting
a claim, a motion to dismiss may be made xxx. In general, a
motion to dismiss should be filed within the reglementary period
for filing a responsive pleading.
However, even after an answer has been filed, the Supreme
Court has allowed a defendant to file a motion to dismiss on the
following grounds:
1) Lack of jurisdiction
2) Litis pendentia;
3) Lack of cause of action; and
4) Discovery during the trial of evidence that would
constitute a ground for dismissal. (Obando, et al., v. Figueras, et al.,
G.R. No. 134854, January 18, 2000)
4. What motion to dismiss necessitates a hearing ?
SUGGESTED ANSWER: A motion to dismiss raising an
affirmative defense such as lack of cause of action poses a
question of fact that should be resolved after due hearing. This is
unlike a motion to dismiss based on the failure of the complaint to
state a cause of action which may be resolved solely on the basis
of the allegations of the complaint. (Heirs of Paes v. Hon. Torres,
etc., et al., G.R No. 104314, February 2, 2000)
5. What is meant by waiver of defenses ?
SUGGESTED ANSWER: Defenses and objections not
pleaded whether in a motion to dismiss or in the answer are
deemed waived. (1st sentence, Sec. 1, Rule 9, ROC)
6. What defenses and objections not waived
even if they have not been raised in a motion to dismiss or in
the answer ?
SUGGESTED ANSWER: Even if motion to dismiss is filed
after the answer, the court shall dismiss the claim when it appears
from the pleadings or evidence on record
a. that the court has no jurisdiction over the subject
matter,
b. that there is another action pending between the
same parties for the same cause, or
c. that the action is barred by prior judgment, or by
statute of limitations. (2nd sentence, Sec. 1, Rule 9, ROC, arrangement
and numbering supplied)
7. What is the test for determining the
sufficiency of a complaint as to cause of action ?
SUGGESTED ANSWER: The test of sufficiency of the facts
found in the complaint as constituting a cause of action is whether
or not admitting the facts alleged the court can render a valid
judgment upon the same in accordance with the prayer thereof.
The hypothetical admission extends to the relevant and material
facts well pleaded in the complaint and inferences fairly deducible
therefrom. Hence, if the allegations in the complaint furnish
sufficient basis by which the complaint can be maintained, the
same should not be dismissed regardless of the defenses that
may be assessed by the defendants. (Viewmaster Construction
Corporation v. Roxas, et al., G.R. No. 133576, July 13, 2000 citing Navoa
v. Court of Appeals, 251 SCRA 545)
8. Are there exceptions to the above test ?
SUGGESTED ANSWER: Yes. The Supreme Court once
said that the trial court and the Court of Appeals should not have
been too rigid in applying the rule that in resolving a motion to
dismiss on the ground of failure to state a cause of action, only the
averments in the complaint and no other are to be consulted. The
rule admits of exceptions:
First: All documents attached to the complaint, the due
execution and genuineness of which are not denied under oath by
the defendant, must be considered as part of the complaint without
need of introducing evidence thereon.
Second: Other pleadings submitted by the parties, in
addition to the complaint, may be considered in deciding whether
the complaint should be dismissed for lack of cause of action.
(Sea-land Services, Inc. v. Court of Appeals, et al., G.R. No. 126212,
March 2, 2000, citing Fil-Estate Gold and Development, Inc. v. Court of
Appeals, et al., 265 SCRA 614; Alberto v. CA, et al., G.R. No. 119088,
June 30, 2000)
9. Distinguish failure to state a cause of
action FROM lack of cause of action.
SUGGESTED ANSWER:
a. In failure to state a cause of action, there is
insufficiency of allegations in the pleading WHILE in lack of cause
of action, there is insufficiency of factual basis for the action;
b. Failure to state a cause of action can be raised in a
motion to dismiss under Rule 16 WHILE lack of cause of action
may be raised at anytime;
c. Dismissal for failure to state a cause of action can be
made at the earliest stages of the action WHILE dismissal for lack
 91
of cause of action is usually made after questions of fact have
been resolved on the basis of stipulations, admissions or evidence
presented. (Dabuco v. Court of Appeals, et al., G.R. No. 133775,
January 20, 2000)
10. When may a court dismiss an action motu
proprio?
SUGGESTED ANSWER: The following are the instances:
a. That the court has no jurisdiction over the subject
matter.
b. That there is another action pending between the
same parties for the same cause. (litis pendentia)
c. That the action is barred by prior judgment. (res
judicata)
d. That the action is barred by the statute of limitations
(prescription). (2nd sentence, Sec. 1, Rule 9, ROC)
11. What are the effects of the dismissal of a case ?
SUGGESTED ANSWER:
a. If the case is dismissed without prejudice, the action
may be resuscitated or revived by the institution of a subsequent
action through the filing of another complaint and the payment of
the filing fee.
b. If the case is dismissed with prejudice, it becomes
final and executory, it cannot be revived anymore. Reason: With
the attainment of finality of the dismissals, the court loses
jurisdiction and control over it and can no longer make a
disposition in respect thereof inconsistent with such dismissal.
(Banares II, et al., v. Balising, et al., G.R. No. 132624, March 13, 2000)
12. The general rule is that the filing of a motion
to dismiss hypothetically admits the material allegations of
the complaint. Are there any exceptions to this rule ?
SUGGESTED ANSWER: Yes. There are equally
established limitations to the rule on hypothetical admission, i.e.,
that a motion to dismiss does not admit:
a. the truth of mere epithets of fraud;
b. nor allegations of legal conclusions;
c. nor an erroneous statement of law;
d. nor mere inferences or conclusions from facts not
stated;
e. nor mere conclusions of law;
f. nor allegations of fact the falsity of which is subject to
judicial notice;
g. nor matters of evidence;
h. nor surplussage and irrelevant matter;
i. nor scandalous matter inserted merely to insert (sic,
should be to insult ?) the opposing party;
j. nor to legally impossible facts;
k. nor to facts which appear unfounded by a record
incorporated in the pleading, or by a document referred to; and
l. nor to general averments contradicted by more
specific averments. (Tan, et al., v. Court of Appeals, et al.,
G.R. No. 125861, September 9, 1998)
13, What is the extent of the hypothetical admission
?
SUGGESTED ANSWER: Only relevant and material facts
well pleaded in the complaint and fairly deducible therefrom.
(Ceroferr Realty Corporation v. Court of Appeals, et al., G.R. No. 139539,
February 5, 2002)
14. May a court defer the resolution of a motion to
dismiss premised on lack of cause of action ? Explain.
SUGGESTED ANSWER: No. Whether or not the
complaint states a cause of action is apparent on the face of the
complaint. (Foster Parents Plan v. Demetrious, 142 SCRA 505)
15. Is it proper for a court to dismiss an action if the
defense of prescription was raised for the first time on appeal
but is apparent in the records of the case?
SUGGESTED ANSWER: Yes. The action may be
dismissed on the ground of prescription even after judgment on
the merits, or even if prescription was never raised at all as long
as the facts demonstrating the lapse of the prescriptive period be
sufficiently and satisfactorily apparent on the record; either in the
averments of the plaintiffs complaint or otherwise established by
evidence. (Gicano v. Gegato, 157 SCRA 140 cited in Aldovino, et al., v.
Alunan, et al., 2230 SCRA 825, which in turn was cited in Dino, et al., v.
Court of Appeals, et al., G.R. No.113564, June 20, 2001)
16. What is the effect of a motion to dismiss on a
compulsory counterclaim ?
SUGGESTED ANSWER: The filing of a motion to dismiss
is an implied waiver of a compulsory counterclaim A compulsory
counterclaim presupposes the existence of a claim against the
party filing the complaint and a grant of a motion to dismiss would
remove the basis of a counterclaim.
 92
NOTE NOT PART OF THE ANSWER: The above doctrine
applies only if a motion to dismiss was filed after the submission of
an answer with a compulsory counterclaim.
However, the compulsory counterclaim that was deemed
waived may be the subject of another action. This is so because
The dismissal of the complaint under this section shall be without
prejudice to the prosecution in the same or separate action of a
counterclaim pleaded in the answer. (Sec. 6, Rule 16, ROC)
17. What is the reason why a motion to dismiss
is an implied waiver of the compulsory counterclaim ?
SUGGESTED ANSWER: A compulsory counterclaim is
auxiliary to the proceeding in the original suit and derives its
jurisdictional support therefrom. A counterclaim presupposes the
existence of a claim against the party filing the counterclaim.
Hence, where there is no claim against the counterclaimant, the
counterclaim is improper and it must be dismissed, more so where
the complaint is dismissed at the instance of the counterclaimant.
Thus, the filing of a motion to dismiss and the setting up of a
compulsory counterclaim are incompatible remedies. In the event
that a defending party has a ground for dismissal and a
compulsory counterclaim at the same time, he must choose only
one remedy. If he decides to file a motion to dismiss, he will lose
his compulsory counterclaim. But if he opts to set up his
compulsory counterclaim, he may still plead his ground for
dismissal as an affirmative defense in his answer. (Financial
Building Corporation v. Forbes Park Association, Inc., G.R. No. 133119,
August 17, 2000)
The reader should realize that the grounds for a motion to
dismiss may be pleaded as affirmative defenses in the answer and
the counterclaim may be validly pleaded. This is so, because
during the trial on the merits, prior to a determination whether the
complaint should be dismissed upon the affirmative defenses, the
counterclaimant would have ample opportunity to prove his claim.
It is different if a motion to dismiss is granted because that would
be the end of the proceedings and the counterclaimant would
have no opportunity to ventilate his claim.
18. When would a counterclaim survive the
dismissal of the original complaint ?
SUGGESTED ANSWER: If a counterclaim has been
pleaded by a defendant prior to the service upon him of the
plaintiff's motion for dismissal, the dismissal shall be limited to the
complaint. The dismissal shall be without prejudice to the right of
the defendant to prosecute his counterclaim in a separate action
unless within fifteen (15) days from notice of the motion he
manifests his preference to have his counterclaim resolved in the
same action. (2nd and 3rd sentences, Sec. 2, Rule 17, ROC)
19. Give an instance where the compulsory
counterclaim does not survive the dismissal of the original
complaint ?
SUGGESTED ANSWER: Compulsory counterclaim does
not survive if original suit dismissed for lack of jurisdiction:
REASON: A compulsory counterclaim is auxiliary to the
proceeding in the original suit and derives its jurisdictional support
therefrom, inasmuch as it arises out of or is necessarily connected
with the transaction or occurrence that is the subject matter of the
complaint.
The above rule applies where the defendant moves to
dismiss the complaint but interposes a compulsory counterclaim.
The permissive counterclaim is not dismissed because it is as if, it
is a separate case. This is so, because the defendant is required
to pay docket fees for his permissive counterclaim.
If the defendants motion to dismiss is granted no
jurisdiction remains for any grant of relief under the counterclaim.
(Intestate Estate of Amado B. Dalisay v. Marasigan, et al., G.R. No.
115088, June 20, 1996) There is implied waiver of the compulsory
counterclaim because the basis for the counterclaim does not
exist. (Financial Building Corporation v. Forbes Park Association, Inc.,
G.R. No. 133119, August 17, 2000)
20. Is a motion to dismiss with counterclaim
sanctioned by the Rules of Court ?
a. If your answer is YES, state your reasons.
b. If you answer is NO, give your reasons and state
what the defendant should instead file in court to preserve his
counterclaim while maintaining the ground asserted in his
motion to dismiss as an issue that should be the subject of a
preliminary hearing.
SUGGESTED ANSWER: a. No. A motion to dismiss
with counterclaim is not sanctioned under the Rules because a
counterclaim may be raised only in an answer.
b. The defendant should file his answer with
counterclaim and any of the grounds for dismissal xxx may be
pleaded as an affirmative defense in the answer and, in the
discretion of the court, a preliminary hearing may be had thereon
as if a motion to dismiss has been filed.
 93
The dismissal of the complaint after the preliminary hearing 3) relies upon for his xxx defense, including any
shall be without prejudice to the prosecution in the same or affirmative reliefs which he may have such as his
separate action of a counterclaim pleaded in the answer. (Sec. 6, counterclaims,
Rule 16, ROC, paraphrasing supplied) c. omitting the statement of mere evidentiary facts.
d. If a defense relied on is based on law,
21. Is denial of a motion to dismiss subject to appeal 1) the pertinent provisions thereof
or certiorari ? 2) and their applicability to him
SUGGESTED ANSWER: The denial of a motion to 3) shall be clearly and concisely stated. (Sec. 1,
dismiss or to quash, being interlocutory, cannot be questioned by Rule 8, ROC, arrangement and numbering supplied)
certiorari; it cannot be the subject of appeal, until final judgment or
order is rendered. (Casil v. Court of Appeals, et al., G.R. No. 121534, 3. What is a negative pregnant ?
January 28, 1998) SUGGESTED ANSWER: A denial pregnant with the
When the motion to dismiss is denied the ordinary admission of the substantial facts in the pleadings responded to
procedure is for the movant to file and answer, go to trial and then which are not squarely denied. (Goma v. Pamplona Plantation, Inc.,
reiterate the grounds raised in the motion to dismiss as grounds G.R. No. 160905, July 14, 2008)
for assailing the judgment. (Drilon, et al., v. Court of Appeals, et al.,
G.R. No. 107019, March 20, 1997) Hence, it is not subject to appeal. 4. What are the facts deemed admitted by the
failure to deny under oath the genuineness and due execution
22. Is there any instance where denial of motion to of an actionable document ?
dismiss may be the subject of certiorari.? SUGGESTED ANSWER:
SUGGESTED ANSWER: Yes. If the court denying the a. The party whose signature appears on the document
motion to dismiss acts without or in excess of jurisdiction or with signed it.
grave abuse of discretion, certiorari under Rule 65 of the Rules of b. If signed by another, the document was signed for
Court may be availed of. The reason is that it would be unfair to the party whose name appears on the document with his authority.
require the defendant-movant to undergo the ordeal and expense c. At the time the document was signed, it was in the
of trial under such circumstances because the remedy of appeal words and figures exactly as set out in the pleading and of the
then would not be plain and adequate. (Drilon, et al., v. Court of party relying upon it.
Appeals, et al., G.R. No. 107019, March 20, 1997) d. The document was delivered.
e. Any formal requisites of law, such as seal,
ANSWER acknowledgment or revenue stamp which the document lacks, are
deemed waived. (Hibbered v. Rhode, 32 Phil. 476)
1. What are responsive pleadings?
SUGGESTED ANSWER: Responsive pleadings are those 5. Give instances where the benefit of admission
which seek affirmative relief and set up defenses. (Fernandez v. of genuineness of actionable document is waived.
The International Corporate Bank, G.R. No. 131 283, October, 7, 1999) SUGGESTED ANSWER:
a. Where the pleader presented witnesses to prove the
2. What should an answer contain ? genuineness and due execution, and the adversary proved,
SUGGESTED ANSWER: The answer should without objection, the contrary. (Yu Chuck v. Kong Li Po, 46 Phil. 608)
a. contain in a methodical and logical form, b. Where the pleader fails to object to evidence
b. a plain, concise and direct statement controverting the genuineness and due execution. (Legarda Koh v.
1) of the ultimate facts Ongsiaco, 36 Phil. 185)
2) on which the party pleading
6. Give instances where there is no admission even
if no denial under oath.
 94
SUGGESTED ANSWER:
a. When the adverse party does not appear to be a
party to the instrument.
b. When compliance with an order for inspection of the
original document is denied. (Sec. 8, Rule 8, ROC)
COUNTERCLAIM
1. What is a counterclaim ?
SUGGESTED ANSWER: A counterclaim is any claim
which a defending party may have against an opposing party.
2. What is a compulsory counterclaim ?
SUGGESTED ANSWER: One which, being cognizable by
the regular courts of justice,
a. arises out of or is connected with the transaction or
occurrence constituting the subject matter of the opposing party's
claim and
b. does not require for its adjudication the presence of
third parties of whom the court cannot acquire jurisdiction.
c. Such a counterclaim must be within the jurisdiction of
the court both as to amount and the nature thereof,
d. except that in an original action before the Regional
Trial Court, the counterclaim may be considered compulsory
regardless of amount. (Sec. 7, Rule 6, ROC numbering and
arrangement supplied)
3. Give examples of compulsory counterclaims
which if not raised in the answer are deemed waived.
SUGGESTED ANSWER:
a. In an action for recovery of land, the defendant's
claim for improvements, and even necessary expenses are
compulsory counterclaims. (Camara v. Aguilar, 94 Phil. 527)
b. In a possessory action, the defendant's claim of
ownership of the land in question is a compulsory counterclaim.
c. Damages claimed to have been suffered as a
consequence of the action filed partake of a compulsory
counterclaim which must be pleaded in the same action. (Tiu Po v.
Bautista, 103 SCRA 388)
d. A claim for attorney's fees should be considered as in
the nature of a compulsory counterclaim and should be pleaded in
the answer to be recoverable otherwise barred.
4. What tests may be applied in order to determine
whether counterclaim is compulsory or not ?
SUGGESTED ANSWER:
a. Are the issues of fact or law raised by the claim and
the counterclaim largely the same?
b. Would res judicata bar a subsequent suit on
defendants claim absent the compulsory counterclaim rule ?
c. Will substantially the same evidence support or refute
plaintiffs claim as well as the defendants counterclaim ?
d. Is there any logical relation between the claim and
the counterclaim ?
Affirmative answers to the above queries indicate the
existence of a compulsory counterclaim. (Financial Building
Corporation v. Forbes Park Association, Inc., G.R. No. 133119, August
17, 2000)
e. The counterclaim must be within the within the
jurisdiction of the court where the action was filed both as to the
amount and nature thereof, except that in an original action before
the Regional Trial Court, the counterclaim may be considered as
compulsory regardless of the amount. (Sec. 7, Rule 6, ROC) If not
then the counterclaim is not a compulsory counterclaim but merely
a permissive counterclaim which may be litigated in another suit.
5. PX filed a suit for damages against DY. In
his answer, DY incorporated a counterclaim for damages
against PX and AC, counsel for plaintiff in said suit, alleging
in said counterclaim, inter alia, that AC, as such counsel,
maliciously induced PX to bring the suit against DY despite
ACs knowledge of its utter lack of factual and legal basis. In
due time, AC filed a motion to dismiss the counterclaim as
against him on the ground that he is not a proper party to the
case, he being merely plaintiffs counsel.
Is the counterclaim of DY compulsory or not ? Should
ACs motion to dismiss the counterclaim be granted or not ?
Reason.
SUGGESTED ANSWER: DYs counterclaim is
compulsory, hence ACs motion should be denied. The same
evidence of maliciously filing the suit is needed by DY to prove the
case against PX and AC. There is thus a logical connection
between the main action and the counterclaim. Both PX and AC
have surrendered themselves to the jurisdiction of the court, and
resolution of the counterclaim does not require the presence of
third persons over whom the court cannot acquire jurisdiction.
Finally, the counterclaim falls within the jurisdiction of the court.
 95
NOTE NOT PART OF THE ANSWER: The counterclaim is c. A cross-claim must be answered, otherwise there
not compulsory because when a lawyer is being sued for filing a may be default WHILE not all counterclaims need to be answered.
case for a client, the same constitutes a separate and distinct civil Only a permissive, not compulsory counterclaim needs to be
action from the original suit. (Chavez v. Sandiganbayan, 193 SCRA answered.
282)
THIRD PARTY COMPLAINT
6. What is the effect if a compulsory
counterclaim is not set up ?
1. What is a third party complaint ?
SUGGESTED ANSWER: The compulsory counterclaim is
SUGGESTED ANSWER: A claim that a defending party
barred if it is not set up in the action filed by the opposing party.
may, with leave of court, file against a person not a party to the
Thus, a compulsory counterclaim cannot be the subject of a
action, called third party defendant for contribution, indemnity,
separate action but it should instead be asserted in the same suit
subrogation or any other relief, in respect of his opponent's claim.
involving the same transaction or occurrence, which gave rise to it.
(Sec. 11, Rule 6, ROC)
(Financial Building Corporation v. Forbes Park Association, Inc., G.R. No.
133119, August 17, 2000)
PLAINTIFF's AND DEFENDANT's COMMON
7. Is there any instance where a counterclaim is
compulsory even if it is outside the courts jurisdiction ?
MOTIONS, ETC.
SUGGESTED ANSWER: Yes. In an original action before
the Regional Trial Court, the counterclaim may be considered as a. Opposition to each other's motions.
compulsory regardless of the amount. ( Sec. 7, Rule 6, ROC) b. Application for depositions and discoveries.
c. Application for substitution of counsel
CROSS-CLAIM
1. What are the requisites for the application
1. What is a cross-claim ? for substitution of counsel ?
SUGGESTED ANSWER: A cross-claim is SUGGESTED ANSWER:
a. any claim by one party against a co-party a. Filing of a written application for substitution.
b. arising out of the transaction or occurrence b. Written consent of the client.
c. that is the subject matter of either of the original c. Written consent of the lawyer to be substituted, if
action or of a counterclaim therein. such consent can be obtained.
Such cross-claim may include a claim that the party against d. Where such written consent cannot be obtained,
whom it is asserted is or may be liable to the cross-claimant for all substitution must be accompanied with proof of service of notice of
or part of a claim asserted in the action against the cross-claimant. such motion in the manner required by the rules, on the attorney to
(Sec. 8, Rule 6, ROC arrangement and numbering supplied) be substituted. (Morales, et al., v. Fabello, et al., 149 SCRA 338)

2. Distinguish cross-claim FROM a counterclaim. AFTER DEFENDANT'S ANSWER,

SUGGESTED ANSWER:
a. A cross-claim is a claim against a co-party WHILE a COUNTERCLAIM
counterclaim is a claim against an opposing party.
b. A cross-claim requires the payment of a filing fee
PLAINTIFF's MOTIONS AND PLEADINGS
WHILE not all counterclaims require such payment. Only a
a. Motions
permissive, not compulsory counterclaim requires the payment of
1) To withdraw or dismiss complaint.
a filing fee.
2) To amend or supplement the complaint.
 96
3) To expunge the answer, counterclaim or any
part thereof.
4) For judgment on the pleadings.
5) For summary judgment.
6) To set pre-trial.
b. Pleadings
1) Reply
2) Answer to counterclaims
JUDGMENT ON THE PLEADINGS
1. What is judgment upon the pleadings ? What
are the grounds for a motion for judgment on the pleadings?
SUGGESTED ANSWER: Judgment by the court upon
motion of a plaintiff, counterclaimant, cross-claimant, or third-party
plaintiff, where an answer:
a. Fails to tender an issue; or
b. Otherwise admits the material allegations of the
complaint, counterclaim, cross-claim or third-party complaint.
(Sec. 1, Rule 34, ROC)
ALTERNATIVE SUGGESTED ANSWER: A motion for judgment
on the pleadings admits the truth of all the material and relevant
allegations of the opposing party and the judgment must rest on those
allegations taken together with such other allegations as are admitted in
the pleadings. (Municipality of Tiwi, etc., v. Betito, G. R. No. 171873, July
9, 2010)
A judgment on the pleadings is proper when the answer fails to
tender an issue, or otherwise admits all the material averments of the
complaint.
However, when it appears that not all the material allegations of
the complaint were admitted in the answer for some of them were either
denied or disputed, and the defendant has set up certain special
defenses which, if proven, would have the effect of nullifying plaintiffs
main cause of action, judgment on the pleadings cannot be rendered.
[supra citing Benavides v. Alabastro, 120 Phil. 1349, 1351-1352 (1964)]
Likewise where several issues are properly tendered by the answer, a
trial on the merits must be resorted to in order to afford each party his day
in court. [supra citing Rodriguez v. Llorente, 49 Phil. 823, 824 (1926)]
2. Distinguish judgment on the pleadings FROM
summary judgment.
SUGGESTED ANSWER:
a. Contents of the answer. In judgment on the
pleadings the answer either does not tender any issue or
otherwise admits all the allegations in the plaintiff's complaint
WHILE the answer in summary judgment tender some issues but
these issues are not genuine, so that they require no judicial
determination.
b. Party. It is the plaintiff, counterclaimant, cross-
claimant, or third-party plaintiff who avails of the remedy of a
judgment on the pleadings WHILE summary judgment may be
asked by the claimant or the defending party.
c. Basis. Judgment on the pleadings is based solely on
the pleadings WHILE summary judgment is based not only on the
pleadings but also on affidavits, admissions, depositions and other
documents.
d. Notice. In judgment on the pleadings, there is no
specific requirement when the motion shall be served to the
opposing party, hence it should be served at least three (3) days
before the date of the hearing which in turn must not be later than
ten (10) days after the filing of the motion WHILE a motion for
summary judgment shall be served at least ten (10) days before
the date specified for hearing which in turn must not be later than
ten (10) days after filing of the motion.
3. As answer admits the material allegations of
Bs complaint. May the court motu proprio render judgment
on the pleadings ?
SUGGESTED ANSWER: No. The plaintiff must file a
motion for judgment on the pleadings. The court could not on its
own render a judgment on the pleadings.
4. A brought an action against her husband B for
annulment of their marriage on the ground of psychological
incapacity. B filed his answer to the complaint admitting all
the allegations therein contained. May A move for judgment
on the pleadings ?
SUGGESTED ANSWER: No. The court should order the
prosecutor to investigate whether or not a collusion between the
parties exists. If there is collusion, the case should be dismissed.
If there is no collusion, the prosecutor should intervene for the
State in order to see to it that the evidence submitted is not
fabricated. (Sec. 3 [e], Rule 9, ROC)
5. May judgment on the pleadings or summary
judgment issue despite the existence of a third-party
complaint ? Illustrate.
 97
SUGGESTED ANSWER: Yes. The defendants or
respondents in the main case are not interested in the outcome of
the third-party complaint.
Illustration: PNB sued Utassco. Utassco then filed a third-
party claim against Lunaza Lumber. The court granted PNBs
motion for judgment on the pleading despite the existence of the
third-party complaint. Reason. The third-party complaint could
proceed separately from the principal action between PNB and
Utassco. PNB is not interested in the outcome of the third-party
complaint. (PNB v. Utility Assurance and Surety Co., 177 SCRA 208)
The foregoing ruling while referring to a judgment on the pleadings
finds similar application to a motion for summary judgment.
MOTION FOR SUMMARY JUDGMENT
1. What are the grounds for summary judgment ?
SUGGESTED ANSWER:
a. If the pleadings, supporting affidavits, depositions,
and admissions on file,
b. show that, except as to the amount of damages,
c. there is no genuine issue as to any material fact and
d. that the moving party is entitled to a judgment as a
matter of law. (Sec. 3, Rule 35, ROC arrangement and numbering
supplied)
2. What is a genuine issue ?
SUGGESTED ANSWER: An issue of fact the resolution of
which calls for presentation of evidence.
3. When is an issue not genuine. ?
SUGGESTED ANSWER: An issue which is sham,
fictitious, contrived, set-up in bad faith, or patently unsubstantial,
hence, summary judgment is proper. (Mallilin, Jr., v. Castillo, G.R.
No. 136803, June 16, 2000; Ley Construction and Development
Corporation, et al., v. Union Bank of the Philippines, G.R. No. 133801,
June 27, 2000)
4. Is a hearing required for summary judgment ?
SUGGESTED ANSWER: No. A hearing is not required for
summary judgment.
In proceedings for summary judgment, the court is merely
expected to act chiefly on the basis of what is in the records of the
case and the hearing contemplated in the Rules is not de riguer as
its purpose is merely to determine whether the issues are genuine
or not, and not to receive evidence on the issues set up in the
pleading. (Ley Construction and Development Corporation, et al., v.
Union Bank of the Philippines, G.R. No. 133801, June 27, 2000 citing
Carcon Development Corporation v. Court of Appeals, 180 SCRA 348)
NOTE NOT PART OF THE ANSWER: A notice of hearing
is required despite that a formal hearing is not required.
5. What is the burden of the movant in a motion for
summary judgment ?
SUGGESTED ANSWER: He has the burden of
demonstrating clearly
a. the absence of any genuine issue of fact or
b. that the issue posed in the complaint is so patently
insubstantial as not to constitute a genuine issue for trial, and any
doubt as to the existence of such an issue is resolved against the
movant.
The controlling factor in a motion for summary judgment is
not the submission or non-submission of counter-affidavits, but the
presence or absence of any genuine issue as to any material fact
that would require the presentation of evidence. Where the facts
pleaded by the parties are disputed or contested, proceedings for
summary judgment cannot take the place of trial. (Sps. Go v. Court
of Appeals, et al., G.R. No. 120040, January 29, 1996)
6. What is the nature of authority to grant relief by
summary judgment ?
SUGGESTED ANSWER: Relief by summary judgment is
intended to expedite and promptly dispose of cases where the
facts appear undisputed and certain from the pleadings,
admissions and affidavits.
It does not vest in the court summary jurisdiction to try
issues on pleadings and affidavits but gives the court limited
authority to enter summary judgment only if it clearly appears that
there is no genuine issue of material fact. On a motion for
summary judgment, the court is not authorized to decide an issue
of fact but to determine whether the pleadings and records before
the court create an issue of fact to be tried.
Courts are quite critical of the papers presented by the
moving party but not of the papers in opposition thereto. Thus, in
ruling on a motion for summary judgment, the court should take
that view of the evidence most favorable to the party against
whom it is directed, giving such party the benefit of all favorable
inferences. (Garcia, et al., v. Court of Appeals, et al., G.R. No. 117032,
July 27, 2000)
 98
7. What kind of evidence is needed to prove ANSWER TO COUNTERCLAIM
the absence of genuine issues in a motion for summary
judgment ? A compulsory counterclaim need not be answered. (Gojo v.
SUGGESTED ANSWER: Testimonial evidence is not Goyala, 35 SCRA 557)
needed, only documentary evidence to prove absence of genuine
issues. ( Sec. 3, Rule 34, ROC)
MOTION TO SET PRE-TRIAL
REPLY
1. Who has the duty to set the case for pre-trial ?
SUGGESTED ANSWER: The plaintiff. After the last
1. What is the effect of the non-filing of a reply ?
pleading has been served and filed, it shall be the duty of the
Explain.
plaintiff to promptly move ex parte that the case be set for pre-trial.
SUGGESTED ANSWER: Ordinarily, a reply is not needed
(Sec, 1, Rule 18, ROC) Reason: It is the plaintiff who knows when
because any new matter alleged by way of defense in the answer
the last pleading has been filed and it is his duty to prosecute the
is deemed controverted, should the party fail to reply thereto.
case expeditiously.
Thus, a new matter such as allegations of forum shopping in the
answer is deemed controverted where the plaintiff did not file a
reply. (Veluz v. Court of Appeals, et al., G.R. No. 129951, November 28, NOTICE OF PRE-TRIAL
2000)
1. Upon whom should the notice of pre-trial be
2. As a general rule, the non-filing of a reply served ? What is the effect of failure to serve such a notice ?
by the plaintiff does not result to his prejudice. Are there any SUGGESTED ANSWER: The notice of pre-trial shall be
instances where the failure of a plaintiff to file a reply shall served
adversely affect him ? a. on counsel, or
SUGGESTED ANSWER: Yes. A reply may be necessary b. the party who has no counsel.
where the answer: The counsel served with such notice is charged with the
a. The defense of usury in which case a reply under duty of notifying the party represented by him. (Sec. 3, Rule 18,
oath is required otherwise the allegations of usury are deemed ROC, arrangement and numbering supplied)
admitted. The absence of such notice renders the proceedings void,
b. Is based on an actionable document in which case a and the judgment rendered therein cannot acquire finality and may
verified reply is necessary to deny the genuineness and due be attacked directly or collaterally. (Tarona v. Sayo, 67 SCRA 508
execution of such document. (Toribio v. Bidin, 134 SCRA 162) and Barde v. Posiquit, 164 SCRA 304 cited in de Guia, et al., G.R. No.
135384, April 4, 2001)
3. What is the procedure to be followed if new
claims arise out of the answer ? COURT REFERRAL TO MEDIATION OR
SUGGESTED ANSWER:
a. If the plaintiff wishes to interpose any claims TO THE BARANGAY
b. arising out of the new matters so alleged in the
answer PLAINTIFF'S AND DEFENDANT'S COMMON
c. such claims shall be set forth in an amended or
supplemental complaint. (2nd par., Sec. 10, Rule 6, ROC arrangement MOTIONS, ETC.
and numbering supplied)
a. Opposition to each other's motions.
b. Pre-trial brief.
c. Application for depositions or modes of discoveries.
 99
d. Joint motion for approval of compromise agreement SUGGESTED ANSWER: If the plaintiff fails to appear, the
action shall be dismissed with prejudice, unless otherwise ordered
PRE-TRIAL BRIEF by the court. (1st and 2nd sentences, Sec. 5, Rule 18, ROC)
The failure of the defendant to appear at the pre-trial shall
be cause to allow the plaintiff to present his evidence ex parte and
1. When shall the pre-trial brief be filed ? the court shall render judgment on the basis thereof. (3rd sentence,
SUGGESTED ANSWER: The parties shall file with the court Sec. 5, Rule 18, ROC)
and serve on the adverse party, in such manner as shall ensure
their receipt thereof at least three (3) days before the date of the 2. What factors should be taken into account in
pre-trial, their respective pre-trial briefs. (1st par., Sec. 6, Rule 18, deciding whether to grant or deny a motion for postponement
ROC) of pre-trial ?
SUGGESTED ANSWER: The court shall take into account:
2. What should a pre-trial brief contain ? a. The reason for the postponement;
SUGGESTED ANSWER: The respective pre-trial briefs of b. The merits of the case of the movant. (Philippine
the parties should contain Transmarine Carriers, Inc., et al., v. Court of Appeals, et al., G.R. No.
a. A statement of their willingness to enter into amicable 122346, February 18, 2000)
settlement or alternative modes of dispute resolution, indicating
the desired terms thereof; 3. What is meant by a meritorious defense ?
b. A summary of the admitted facts and proposed SUGGESTED ANSWER: The term meritorious defense
stipulation of facts; may imply that the applicant has the burden of proving such a
c. The issues to be tried or resolved; defense in order to have the judgment set aside. The cases
d. The documents or exhibits to be presented, stating usually do not require such a strong showing. The test employed
the purposes thereof; appears to be essentially the same as used in considering
e. A manifestation of their having availed or their summary judgment, i.e. whether there is enough evidence to
intention to avail themselves of discovery procedures or referral to present an issue for submission to the trier of fact, or a showing
commissioners; and that on the undisputed facts, it is clear the judgment is warranted
f. The numbers and names of the witnesses, and the as a matter of law. (Philippine Transmarine Carriers, Inc., et al., v.
substance of their respective testimonies. (1st par., Sec. 6, Rule 18, Court of Appeals, et al., G.R. No. 122346, February 18, 2000)
ROC)
4. Distinguish pre-trial in a criminal case FROM
3. What is the effect of failure to file pre-trial a pre-trial in a civil case.
brief ? SUGGESTED ANSWER: The following are the distinctions:
SUGGESTED ANSWER: The failure to file a pre-trial brief a. The pre-trial in a criminal case does not consider the
has same effect as failure to appear at the pre-trial. (last par., Sec. possibility of a compromise WHILE in a civil case, the linchpin of
6, Rule 18, ROC) pre-trial is arriving at a compromise.
b. In a criminal case, a pre-trial agreement is required
PRE-TRIAL AND TRIAL to be reduced to writing, signed by the prosecution, the accused
and his counsel WHILE in a civil case, the court issues a pre-trial
PRE-TRIAL order which is signed by the judge and not the parties.
c. In a criminal case, it is the court that sets the pre-trial
WHILE in a civil case, it is the plaintiff.
1. It is the duty of the parties and their counsel to
appear at the pre-trial. What is the effect of the failure of the
parties to appear during the pre-trial ? TRIAL
 100
1. Are there any instances where no trial is
conducted in civil cases ?
SUGGESTED ANSWER: Yes. Where the case is:
a. Dismissed upon a motion to dismiss the complaint or
pleading asserting a claim filed by the defending party. (Rule 16,
ROC)
b. Dismissed by the plaintiff without order of the court.
(Sec. 1, Rule 17, ROC)
c. Dismissed by the plaintiff upon order of the court at
the plaintiff's instance. (Sec. 2, Rule 17, ROC)
d. Dismissed upon motion of the defendant or upon the
court's own motion if the plaintiff fails to appear at the trial, or
prosecute his action for an unreasonable length of time, or to
comply with the Rules of Court, or any order of the court. (Sec. 3,
Rule 17, ROC)
e. Decided after declaration of default for failure of the
defending party to file an answer unless the court in its discretion
requires the claimant to submit evidence. (Sec. 3, Rule 9, ROC)
f. Decided on a motion for judgment on the pleadings.
(Rule 34, ROC)
g. Decided for failure of the parties and their counsel to
appear at the pre-trial. (Sec. 5, Rule 18, ROC)
h. Decided after the court finds during the pre-trial the
propriety of rendering judgment on the pleadings, or summary
judgment, or of dismissing the action should a valid ground
therefore be found to exist. (Sec. 2 [g], Rule 18, ROC)
i. Decided on a motion to dismiss or judgment by
default by wilful failure or refusal of a party to have his deposition
taken or to answer interrogatories. (Sec. 5, Rule 29, ROC)
j. Decided after the parties have agreed in writing, upon
the facts involved in the litigation and submit the case for judgment
on the facts agreed upon, without the introduction of evidence.
(Sec. 6, Rule 30, ROC)
2. When may trial by commissioner be conducted ?
SUGGESTED ANSWER: Trial by commissioner may be
conducted
a. upon reference through mutual consent of both
parties,
b. upon motion of either party or
c. upon the courts own motion.
DEMURRER TO EVIDENCE
1. What is a motion for judgment on demurrer
to evidence and what are its effects ?
SUGGESTED ANSWER: A motion to dismiss filed by the
defending party after the claimant has rested his case, on the
ground of insufficiency of evidence.
Effects of filing a motion for judgment on demurrer to
evidence:
a. The defending party does not thereby waive his right
to offer evidence in the event that his motion is denied. (Sec. 1,
Rule 33, ROC)
b. If the motion is granted and the order of dismissal is
reversed on appeal, the defendant waives his right to present
evidence in his behalf. (Ibid.)
c. In case (b) above, the appellate court shall forthwith
render judgment for the claimant on the basis of his evidence
alone. (Atun v. Nunez, 97 Phil. 762)
DISMISSALS
1. When are dismissals with prejudice ?
SUGGESTED ANSWER: The following are dismissals with
prejudice:
a. Dismissal upon mere notice without order of the court
when filed by a party who was once dismissed in a competent
court an action based on or including the same claim . (Sec. 1, Rule
17, ROC)
b. Dismissal by order of the court upon a party's motion
which specifies that the same shall be with prejudice of the filing of
a subsequent action based on or including the same claim. (Sec.
2, Rule 17, ROC)
c. Dismissal upon motion of a defendant or on the
court's own motion upon a failure by the plaintiff to prosecute his
claim. (Sec. 3, Rule 17, ROC)
d. Dismissal as a result of the plaintiffs absence during
the pre-trial, unless otherwise ordered by the court. (1st and 2nd
sentences, Rule 18, ROC)
2. What dismissals are without prejudice ?
SUGGESTED ANSWER:
a. Dismissal for the first time by the plaintiff upon mere
notice without order of the court. (Sec. 1, Rule 17, ROC)
b. Dismissal by order of the court upon the plaintiff's
motion. (Sec. 2, Rule 17, ROC)
 101
c. Dismissal upon motion of the defendant or upon the regarded as an adjudication on the merits and is with prejudice.
court's own motion upon failure to prosecute by the plaintiff and (Knecht, supra)
the court specifies that the same shall be without prejudice. (Sec.
3, Rule 17, ROC) 6. Give examples of disobedience of court orders
which may result in dismissal.
3. When may an action be dismissed upon motion of SUGGESTED ANSWER:
the defendant or motu proprio by the court ? a. An order directing the plaintiff to amend his complaint
SUGGESTED ANSWER: If for no justifiable cause the so as to indicate the representative of the deceased defendant.
plaintiff fails: (Sunico v. Villapando, 13 Phil. 352)
a. To appear on the date of the presentation of his b. An order to file a bill of particulars. (Bautista v.
evidence in chief on the complaint; or Teodoro, 101 Phil. 7001)
b. To prosecute his action for an unreasonable length of c. An order to present his witnesses anew in view of the
time, or fact that the judge was not the one who originally tried the case.
c. To comply with the Rules of Court, or (Castillo v. Sebullina, 31 Phil. 518)
d. To comply with any order of the court.
The dismissal shall be without prejudice to the right of the PLAINTIFF'S AND DEFENDANT'S COMMON
MOTIONS, NOTICES, ETC.
defendant to prosecute the counterclaim in the same or in a
separate action.
The dismissal shall have the effect of an adjudication upon a. Motion for the issuance of a subpoena
the merits, unless otherwise declared by the court. (Sec. 3, Rule b. Motion for amendment to conform to evidence
17, ROC numbering and arrangement supplied))
MOTION FOR THE ISSUANCE OF A
4. When is an action dismissed for failure to prosecute
?
SUBPOENA
SUGGESTED ANSWER:
a. If the plaintiff fails to appear at the time of trial; or 1. What are some of the valid grounds for refusal to
b. If he fails to prosecute the action for an unreasonable comply with a subpoena ?
length of time; or SUGGESTED ANSWER:
c. If he fails to comply with the Rules of Court or any a. Where the witness resides more than one hundred
order of the court. (De Knecht, et al., v. Court of Appeals, et al., G.R. (100) kilometers from his residence to the place where is to testify
No. 108015 and De Knecht, et al. v. Hon. Sayo, et al, G.R. No. 109234, by the ordinary course of travel, or
May 20, 1998) b. Where the witness is a detention prisoner if no
permission of the court in which his case is pending was obtained.
5. What is the effect of dismissal for failure to (Sec. 10, Rule 21, ROC arrangement and numbering supplied)
prosecute ?:
SUGGESTED ANSWER: Once a case is dismissed for MOTION FOR AMENDMENT TO CONFORM TO
failure to prosecute, this has the effect of an adjudication on the
merits and is understood to be with prejudice to the filing of EVIDENCE
another action unless otherwise provided for in the order of
dismissal. (De Knecht, et al., v. Court of Appeals, et al., G.R. No. 1. How may the pleadings be amended to conform
108015 and De Knecht, et al. v. Hon. Sayo, et al, G.R. No. 109234, May to evidence ?
20, 1998) SUGGESTED ANSWER:
In other words, unless there be a qualification in the order of a. When issues not raised by the pleadings
dismissal that it is without prejudice, the dismissal should be b. are tried with the express or implied consent of the
parties,
 102
c. they shall be treated in all respects as if they had 471 SCRA 431, the Supreme Court has ruled that the general
been raised in the pleadings. prayer is broad enough to justify extension of a remedy different
d. Such amendment of the pleadings as may be from or together with the specific remedy sought. [Sps. Gutierrez v.
necessary to cause them to conform to the evidence and Sps. Valiente, et al., G. R. No. 166802, July 4, 2008 citing Morales v.
e. to raise these issues may be Court of Appeals, G.R. No. 112140, June 23, 2005, 461 SCRA 34; First
f. made upon motion of any party Metro Investment Corporation v. Este Del Sol Mountain Reserve, Inc.,
1) at any time, even after judgment; but 420 Phil. 902 (2001)]
g. failure to amend does not affect the result of the trial Even without the prayer for a specific remedy, proper relief
of these issues. (1st two sentences, Sec. 5, Rule 10, ROC arrangement may be granted by the court if the facts alleged in the complaint
and numbering supplied) and the evidence introduced so warrant. (Ibid., citing Eugenio, Sr. v.
Velez, G.R. No. 85140, May 17, 1990, 185 SCRA 425, 432-433) The
2. When may the court authorize amendment of court shall grant relief warranted by the allegations and the proof
the pleadings ? Explain. even if no such relief is prayed for. (Ibid., citing Arroyo, Jr. v.
Taduran, 466 Phil. 173, 180 (2004); Banco Filipino Savings and Mortgage
SUGGESTED ANSWER: Bank v. Court of Appeals, 388 Phil. 27, 41 (2000)]
a. If evidence is objected to at the trial on the ground The prayer in the complaint for other reliefs equitable and
that it is not within the issues made by the pleadings, just in the premises justifies the grant of a relief not otherwise
b. the court may allow the pleadings to be amended and specifically prayed for. (Sps. Gutierrez v. sps. Valiente, et al.,supra)
shall do so with liberality.
c. If the presentation of the merits of the action and the 3. What is a sin perjuicio judgment ?
ends of substantial justice will be subserved thereby. SUGGESTED ANSWER: It is a judgment that does not
d. The court may grant a continuance to enable the resolve all the issues between the parties because a reservation is
amendment to be made. (last two sentences, Sec. 5, Rule 10, ROC made for some parties to raise the unresolved issues in separate
arrangement and numbering supplied)
or further proceedings. It is not binding upon the party for whom
the reservation is made. (Gatus v. Court of Appeals, et al., 95 SCRA
JUDGMENT AND AFTER JUDGMENT 531)

4. What are the effects of a judgment upon a

JUDGMENT compromise ?
SUGGESTED ANSWER:
1. What is a judgment ? a. It is not appealable and is immediately executory
SUGGESTED ANSWER: Judgment is the final (Reyes v. Ugarte. 75 Phil. 505), unless such a motion is filed to set
consideration and determination of a court of competent aside the compromise on the ground of fraud, mistake or duress,
jurisdiction upon the matters submitted to it, in an action or in which case an appeal may be taken from the order denying the
proceeding. motion. (De Guzman, et al., v. Court of Appeals, et al., 137 SCRA 736)
It is also the conclusion of the law upon the matters b. It cannot be annulled unless it is vitiated by error,
contained in the record, the application of the law to the pleadings deceit, violence or forgery of documents. (Morales v. Fontanos, 64
and to the facts, as found by the court or admitted by the parties, Phil. 19)
or deemed to exist upon their default in a course of judicial c. It constitutes res adjudicata.
proceedings. (Gotamco v. Chan Seng, 46 Phil. 550)
5. What are the grounds for appealing a
2. May a relief not specifically provided for in the judgment on a compromise ?
prayer be granted ? SUGGESTED ANSWER: The grounds are:
SUGGESTED ANSWER: Yes. In BPI Family Bank v. a. Fraud, mistake or duress;
Buenaventura, G.R. Nos. 148196 & 148259, September 30, 2005, b. error, deceit, violence or forgery of documents.
 103
6. What is the effect of foreign judgments or
foreign final orders ?
SUGGESTED ANSWER: The effect of a judgment or final
order of a tribunal of a foreign country, having jurisdiction to render
the judgment or final order is as follows:
a. In case of a judgment or final order upon a specific
thing, the judgment or final order is conclusive upon the title to the
thing; and
b. In case of a judgment or final order against a person,
the judgment or final order is presumptive evidence of a right as
between the parties and their successors in interest by a
subsequent title. (1st par., Sec. 48, Rule 39, ROC)
7. What are the grounds for repelling foreign
judgments ?
SUGGESTED ANSWER:
a. Evidence of want of jurisdiction, want of notice to the
party,
b. collusion, fraud, or
c. clear mistake of law or fact. (Sec. 48, Rule 39, ROC
numbering and arrangement supplied)
8. Asiavest Merchant Bankers (M) Berhad, a
corporation organized under the laws of Malaysia filed a
petition before the Regional Trial Court of Pasig, Metro Manila
to enforce the judgment of the High Court of Malaya
(Commercial Division) which it obtained against the
Philippine National Construction Corporation (PNCC). The
respondent opposed the petition alleging that jurisdiction
was not acquired by the Malaysian Court over the person of
the respondent due to alleged improper service of summons,
the allege lack of authority of its counsel to appear and
represent it before the Malaysian Court; the foreign judgment
is allegedly tainted by evident collusion, fraud and clear
mistake of fact or law because the draft was prepared by the
counsel for the successful party; and the Malaysian judgment
is alleged contrary to the provisions of the Philippine
Constitution that every decision must state the facts and the
law on which it is based
Rule on the petition ?
SUGGESTED ANSWER: Petition granted.
a. Matters of remedy and procedure such as those
relating to the service of summons or court process upon
defendants, the authority of counsel to appear and represent a
defendant and the formal requirements in a decision are governed
by the lex fori or the internal law of the forum. I.e. the law of
Malaysia. It appeared from the record that the laws of Malaysia on
the matter were complied with.
b. Even when the foreign judgment is based on the
drafts prepared by the counsel for the successful party, such is not
per se indicative of collusion or fraud. Fraud to hinder the
enforcement within the jurisdiction of a foreign judgment must be
extrinsic, i.e. fraud
1) based on facts not controverted or resolved in
the case where the judgment is rendered, or that
2) which could go to the jurisdiction of the court, or
3) which would deprive the party against whom
judgment is rendered a chance to defend the action to
which he has a meritorious defense. [Asiavest Merchant
Bankers (M) Berhad v. Court of Appeals, et al., G.R. No. 110263,
July 20, 2001]
9. Does a court have authority to amend judgments
which are not yet final ?
SUGGESTED ANSWER: Yes. A court has the inherent
power to amend and control its process and orders so as to make
them conformable to law and justice. [Sec. 5 (g), Rule 135, ROC]
and when it finds that the ends of justice would be better served,
the court may disregard technicalities and amend its order or
process that has not become final. (Villanueva v. CFI of Oriental
Mindoro, 119 SCRA 288)
10. May a decision that has become final and
executory be subject to modification ?
SUGGESTED ANSWER: No more. A final and executory
decision could no longer be disturbed. This legal reality, known as
the rule of immutability of judgment, is an elementary principle of
law and procedure. Once a judgment becomes final, it may no
longer be modified in any respect, even if the modification is
meant to correct what is perceived to be an erroneous conclusion
of fact or law, and regardless of whether the modification is
attempted to be made by the court rendering it or by the Highest
Court of the land. (Mercado, etc., v. Hon. Salcedo, etc., A.M. No. RTJ-
03-1781, and companion case, October 16, 2009 citing Equitable
Banking Corporation v. Sadac, G.R. No. 164772, June 8, 2006, 490
SCRA 380)
The general rule is that a judgment that acquired finality
becomes immutable and unalterable, hence may no longer be
 104
modified. (Briones-Vasquez v. Court of Appeals, et al., G. R. No.
144882, February 4, 2005)
11. Are there exceptions to the rule on non-
modification ?
SUGGESTED ANSWER: The only recognized exceptions
are the correction of clerical errors, or the making of so-called
nunc pro tunc entries, which cause no prejudice to any party, and
where the judgment is void. (Mercado, etc., v. Hon. Salcedo, etc.,
A.M. No. RTJ-03-1781, and companion case, October 16, 2009 citing
Equitable Banking Corporation v. Sadac, G.R. No. 164772, June 8, 2006,
490 SCRA 380, 417)
12. What is a judgment nunc pro tunc ?
SUGGESTED ANSWER: Literally, it means judgment now
for then. When a judgment of a lower court is affirmed on appeal,
it is then remanded for entry of final judgment. The entry is made
now of the affirmed judgment which was earlier rendered.
13. What is the purpose of a judgment nunc pro tunc
? Waterworks & Sewerage System v. Sison, G.R. No. L-40309, August 31,
SUGGESTED ANSWER: The office of a judgment nunc
pro tunc is to record some act of the court done at a former time
which was not then carried into the records and the power of a
court to make such entries is restricted to placing upon the record
evidence or judicial action which has been actually been taken.
Hence a court in entering a judgment nunc pro tunc has no
power to construe what the judgment means, but only to enter of
record such judgment as had been formerly rendered, but which
had not been entered of record as rendered.
In all cases the exercise of the power to enter judgment
nunc pro tunc presupposes the actual rendition of a judgment, and
a mere right to a judgment will not furnish the basis for such an
entry. (15 R.C.L. pp. 632-623 cited in Briones-Vasquez v. Court of
Appeals, et al., G. R. No. 144882, February 4, 2005)
14. Give an example of a void judgment or order ?
SUGGESTED ANSWER: The failure to implead the
indispensable party defendants is a ground for the RTC to dismiss,
or at least suspend, the proceedings of the case. [Acosta, et al., v.
Salazar, et al., G. R. No. 161034, June 30, 2009 citing Borlasa v.
Polistico, 47 Phil. 345 (1925) and Cortez v. Avila, 101 Phil. 705 (1957)
cited in I Regalado, Remedial Law Compendium, 2002 ed., p. 82]
Thus, if the action proceeded, any judgment or order issued
by the court thereon is null and void for want of authority on the
part of the court to act with respect to the parties never impleaded
in the action. [supra citing Arcelona v. Court of Appeals, 345 Phil. 250,
267-268 (1997); Alabang Development Corporation v.. Valenzuela, No. L-
54094, August 30, 1982, 116 SCRA 261, 277; Director of Lands v. Court
of Appeals, 181 Phil. 432 (1979); and Tanhu v. Judge Ramolete, 160 Phil.
1101 (1975)]
15. What are the effects of a void order ?
SUGGESTED ANSWER: a void order is not entitled to the
respect accorded to a valid order. It may be entirely disregarded or
declared inoperative by any tribunal in which effect is sought to be
given to it. It has no legal or binding effect or efficacy for any
purpose or at any place and thus cannot affect, impair or create
rights. It is not entitled to enforcement and is, ordinarily, no
protection to those who seek to enforce the same. Accordingly, all
proceedings founded on the void court order are themselves
regarded as invalid, and the situation is the same as it would be if
there was no order issued by the court. It leaves the party litigants
in the same position they were in before the trial. (Acosta, et al., v.
Salazar, et al., G. R. No. 161034, June 30, 2009 citing Metropolitan
1983, 124 SCRA 394, 404 in turn citing 31 Am. Jur., 91-92) A void
order, like any void judgment, may be said to be a lawless thing
which can be treated as an outlaw and slain at sight. (supra citing
Arcelona v. Court of Appeals, G.R. No. 102900, October 2, 1997, 280
SCRA 20, 57; Leonor v. Court of Appeals, G.R. No. 112597, April 2, 1996,
256 SCRA 69, 82)
Thus, a void order or judgment never acquire finality. (supra
citing Heirs of Mayor Nemencio Galvez v. Court of Appeals, G. R. No.
119193, March 29, 1996, 255 SCRA 672, 689-690; Gomez v.
Concepcion, 47 Phil. 717, 722-723 (1925)] Quod ab initio non valet, in
tractu temporis non convalescit. That which is void originally does
not by lapse of time become valid.
PLAINTIFF's AND DEFENDANT's
COMMON MOTIONS, PETITIONS ETC.,
AFTER JUDGMENT
a. Motion
1. For reconsideration
2. For new trial
b. Petition for relief from judgment
c. Petition for annulment of judgment
 105
MOTION FOR RECONSIDERATION OR NEW
TRIAL
1. What are the grounds of motion for
reconsideration of a judgment ?
SUGGESTED ANSWER:
a. The damages awarded are excessive;
b. that the evidence is insufficient to justify the decision or
final order, or
c. that the decision or final order is contrary to law. (last
par., Sec. 1, Rule 37, ROC)
2. What is a pro forma motion for reconsideration ?
SUGGESTED ANSWER: One that does not specify the
findings or conclusions in the judgment which are not supported by
evidence or contrary to law, making express reference to the
pertinent evidence or legal provisions (Marina Properties Corporation
v. Court of Appeals, et al., G.R. No. 125447 and H.L. Carlos Construction,
Inc. v. Court of Appeals, et al., G.R. No. 125475, August 14, 1998),
alleged to be contrary to such findings or conclusions. (3rd par.,
Sec. 2, Rule 37, ROC)
3. Give instances where motion for reconsideration
were not considered as pro forma even if it reiterates issues
already passed upon by the court.
SUGGESTED ANSWER:
a. Although a motion for reconsideration may merely
reiterate issues already passed upon by the court, that by itself
does not make it pro forma and is immaterial because what is
essential is compliance with the requisites of the Rules. (Marina
Proper-ties Corporation v. Court of Appeals, et al., G.R. No. 125447 and
H.L. Carlos Construction, Inc. v. Court of Appeals, et al., G.R. No.
125475, August 14, 1998)
b. Among the ends to which a motion for
reconsideration is addressed is precisely to convince the court that
its ruling is erroneous and improper, contrary to law or the
evidence, and in doing so, the movant has to dwell of necessity
upon the issues passed upon by the court. If a motion for
reconsideration may not discuss these issues, the consequence
would be that after a decision is rendered, the losing party would
be confined to filing only motions for reopening and new trial.
Such is not the intendment of the Rules. (Marina, supra)
c. Where the circumstances of a case do not show an
intent on the part of the pleader to merely delay the proceedings,
and his motion reveals a bona fide effort to present additional
matters or to reiterate his arguments in a different light, the courts
should be slow to declare the same outright as pro forma. The
doctrine relating to pro forma motions has a direct bearing upon
the movant's valuable right to appeal. It would be in the interest of
justice to accord the appellate court the opportunity to review the
decision of the trial court on the merits rather than to abort the
appeal by declaring the motion pro forma, such that the period to
appeal was not interrupted and had consequently lapsed. (Marina,
supra citing 1 Florenz D. Regalado, Remedial Law Compendium 380 (6th
ed., 1997).
d. Under Supreme Court Circular No. 1-91 dated 27
February 1991 and Revised Administrative Circular No. 1-95 dated
16 May 1995, which took effect on 1 June 1995, an aggrieved
party is allowed one motion for reconsideration of the assailed
decision or final order before he may file a petition for review with
the Court of Appeals. (Marina, supra)
4. What is the effect of a pro forma motion for
reconsideration ?
SUGGESTED ANSWER: A pro forma motion for new trial
or reconsideration shall not toll the reglementary period of appeal.
(last par., Sec. 2, Rule 37, ROC)
5 . What are the grounds of a motion for
new trial ?
SUGGESTED ANSWER: One or more of the following
causes materially affecting the substantial rights of the aggrieved
party:
a. Fraud,
1) accident,
2) mistake or
3) excusable negligence which ordinary prudence
could not have guarded against and by reason of which such
aggrieved party has probably been impaired in his rights; or
b. Newly discovered evidence, which he could not, with
reasonable diligence, have discovered and produced at the trial,
and which if presented would probably alter the result. (1st three
pars., Sec. 1, Rule 37, ROC paraphrasing supplied)
6. What is the remedy for an order denying a motion
for reconsideration or a motion for new trial ?
SUGGESTED ANSWER:
Resort to the special civil actions of certiorari, prohibition or
mandamus.
 106
An order denying a motion for new trial or reconsideration is
not appealable, the remedy being an appeal from the judgment or
final order. (ROC, Rule 37, Sec. 9)
NOTE: While A.M. No. 07-7-12-SC has removed An order
denying a motion an order denying a motion for new trial or
reconsideration from those that may be appealed, the author
believes that such an order is still not be subject to appeal. This is
so because Rule 41, Sec. 1 as amended by A.M. No. 07-7-12-SC
should be read in the light of Rule 37, Sec. 9 which reads, An
order denying a motion for new trial or reconsideration is not
appealable, the remedy being an appeal from the judgment or final
order.
While this may be so, the author makes the further
submission that such an order of denial, although not included in
Rule 41, Sec. 1, last paragraph as being subject to special civil
actions under Rule 65, may still be the subject of special civil
actions because there is no appeal and that resort to special civil
actions may be a speedy remedy compared with proceeding to the
hearing of the case.
7. What are the distinctions between new trial and
petition for relief from judgment ?
SUGGESTED ANSWER:
a. Grounds: A motion for new trial is based on fraud,
accident, mistake, excusable evidence and newly discovered
evidence WHILE a petition for relief is based on the grounds that
the petitioner has been unjustly deprived of a hearing therein, or
that he has prevented from taking an appeal, in either case, by
reason of fraud, accident, mistake or excusable negligence.
b. As to time of filing. A motion for new trial should be
filed within the period for taking an appeal WHILE a petition for
relief from judgment is filed within sixty (60) days after the
petitioner learns of the judgment, final order, or other proceeding
to be set aside and not more than six (6) months after such
judgment or final order was entered.
c. Effect on the judgment if granted. No distinction.
8. What are the various modes of attacking final
and executory judgments ? Explain each briefly.
SUGGESTED ANSWER:
a. Direct action or proceeding to annul the same, or by
motion in another case if, in the latter case, the court had no
jurisdiction to enter the order or to pronounce the judgment. It is
not incidental to, but is the main object of the proceeding.
b. Collateral attack, in which the purpose of the
proceedings is to obtain some relief, other than the vacation or
setting aside of the judgment and the attack is only incidental. (1
Freemen on Judgments, Sec. 306, pp. 607-608)
c. Petition for relief from judgment or order as
authorized by statutes or by the rules, in the same action or
proceeding in which the judgment or order was entered. (Agustin v.
Bocalan, 135 SCRA 346)
9. What are the grounds for annulment of
judgment ?
SUGGESTED ANSWER:
a. Void for want of jurisdiction or lack of due process of
law; and
b. Has been obtained by extrinsic fraud. (Strait Times,
etc. v. Court of Appeals, et al., G.R. No. 126673, August 28, 1998)
10. What is the meaning of extrinsic fraud which
could be the basis for annulment of judgment ? Explain
briefly.
SUGGESTED ANSWER: Extrinsic fraud, also known as
collateral fraud, refers to any fraudulent act of the prevailing party
in the litigation which is committed outside of the trial of the case,
whereby the defeated party has been prevented from exhibiting
fully his side of the case by fraud or deception practiced on him by
his opponent. (Heirs of Pael, et al., v. Court of Appeals, et al., G.R. No.
133547; Destura v. Court of Appeals, et al., G.R. No. 133843, February
10, 2000)
11. Give examples of circumstances where
extrinsic fraud is present.
SUGGESTED ANSWER:
a. Where the unsuccessful party had been prevented
from exhibiting fully his case by fraud or deception practiced on
him by his opponent, as by keeping him away from court, a false
promise of a compromise; or
b. Where the defendant never had knowledge of the
suit, being kept in ignorance by the acts of the plaintiff; or where
an attorney fraudulently or without authority assumes to represent
a party and connives at his defeat; or
c. Where the attorney regularly employed corruptly sells
out his client's interest to the other side. (Straits Times, Inc. etc. v.
Court of Appeals, et al., G.R. No. 126673, August 28, 1998)
 107
12. What is the meaning of intrinsic fraud
which is not a basis for annulment of judgment ?
SUGGESTED ANSWER: Intrinsic fraud are acts of a party
at a trial which prevented a fair and just determination of the case
and which could have been litigated and determined at the trial or
adjudication of the case. (Salonga, et al., v. Court of Appeals, et al.,
G.R. No. 11478, March 13, 1997)
13. When should the petition for annulment of
judgment be filed ?
SUGGESTED ANSWER: A petition for annulment of
judgment on the ground of fraud may be filed within four (4) years
from discovery of the same. (Alarcon v. Court of Appeals, et al., G.R.
No. 126802, January 28, 2000; Heirs of Pael, et al., v. Court of Appeals,
et al., G.R. No. 133547; Destura v. Court of Appeals, et al., G.R. No.
133843, February 10, 2000)
PETITION FOR RELIEF FROM JUDGMENT
1. What is a petition for relief from judgment ?
SUGGESTED ANSWER: A petition for relief from judgment
is an equitable remedy that is allowed only in exceptional cases
when there is no other available or adequate remedy. When a
party has another remedy available to him, which may be either a
motion for new trial or appeal from an adverse decision of the trial
court and he was not prevented by fraud accident, mistake or
excusable negligence from filing such motion or taking such
appeal, he cannot avail himself of this petition. (Mercury Drug
Corporation v. CA, et al., G.R. No. 138571, July 13, 2000; Basco v. Court
of Appeals, et al., August 9, 2000 citing Samoso v. CA, 178 SCRA 654;
Rizal Commercial Banking Corporation v. Lood, 110 SCRA 205; Ibabao v.
Intermediate Appellate Court, 150 SCRA 76)
2. Where should the petition for relief from
judgment be filed ?
SUGGESTED ANSWER: The petition for relief must be
filed in the same court and in the same case irrespective of
whether the court is an MTC, RTC, the CA or even the Supreme
Court in case of a petition for relief from judgment, order or other
proceeding. (Secs. 1 and 2, Rule 38, ROC)
3. When should the petition for relief from
judgment be filed ?
SUGGESTED ANSWER: The petition for relief from
judgment, order of proceeding must be filed
a. within sixty (60) days after the petitioner learns of the
judgment, final order, or other proceeding to be set aside, and
b. not more than six (6) months after such judgment or
final order was entered, or such proceeding was taken. (Sec. 3,
Rule 38, ROC, arrangement and numbering supplied)
4. May the mandatory reglementary periods for
filing relief from judgment be waived ? Explain.
SUGGESTED ANSWER: While the reglementary periods
fixed under the rules for relief from judgment are mandatory in
character, (Heirs of the late Jose de Luzuriaga, etc., et al., v. Republic,
etc., G. R. 168848, June 30, 2009 and companion case citing Lynx
Industries Contractor, Inc. v. Tala, G.R. No. 164333, August 24, 2007,
531 SCRA 169, 175; Reyes v. Court of Appeals, G.R. No. 150722, August
17, 2007, 530 SCRA 468, 474; citing Quelnan v. VHF Philippines, G.R.
No. 138500, September 16, 2005, 470 SCRA 73) procedural rules of
the most mandatory character in terms of compliance may, in the
interest of substantial justice, be relaxed. (supra citing Department of
Agrarian Reform v. Republic, G.R. No. 160560, July 29, 2005, 465 SCRA
419, 428; citing Yao v. Court of Appeals, G.R. No. 132428, October 24,
2000, 344 SCRA 202, 221)
Since rules of procedure are mere tools designed to
facilitate the attainment of justice, they are not to be applied with
severity and rigidity when such application would clearly defeat the
very rationale for their existence. In line with this postulate, the
Supreme Court can and will relax or altogether suspend the
application of the rules, or except a particular case from the rules
operation when their rigid application tends to frustrate rather than
promote the ends of justice. (supra citing Metro Rail Transit
Corporation v. Court of Tax Appeals, G.R. No. 166273, September 21,
2005, 470 SCRA 562, 566; citing Go v. Tan, G.R. No. 130330, September
26, 2003, 412 SCRA 123, 128-129)
5. What are the grounds for filing a petition for
relief from judgment, order or other proceedings ?
SUGGESTED ANSWER: When a judgment or final order is
entered, or any other proceeding is hereafter taken against a party
a. in any court through
1) fraud,
2) accident,
3) mistake, or
4) excusable negligence,
b. he may file a petition
 108
1) in such court and c. as if a timely and proper appeal had been
2) in the same case made. (Sec. 7, Rule 38, ROC, arrangement and
c. praying that the judgment, order or proceeding be set numbering supplied)
aside. (Sec. 1, Rule 38, ROC arrangement and numbering supplied)
9. A decision of the Regional Trial Court adverse
6. What are the effects of granting the petition to Delia was received by her counsel on 13 July 2009. As
for relief from judgment, order or proceeding ? Delia was leaving for Canada, she forthwith instructed her
SUGGESTED ANSWER: counsel to appeal because according to her she was
a. The court shall set aside the judgment or final order prevented from fully presenting her case in court through the
or other proceeding complained of upon such terms as may be fraudulent acts of the prevailing party. When Delia returned
just. from abroad on 1 August 2009, she discovered that her case
b. Thereafter the case shall stand as if such judgment, was not appealed as her counsel had died a day after she left.
final order or other proceeding had never been rendered, issued or Moreover, the other party has filed a motion for issuance of a
taken. writ of execution which remains pending in court.
c. The court shall then proceed to hear and determine As the new counsel of Delia, what course of action will
the case as if a timely motion for a new trial or reconsideration had you pursue to protect her interest ? Discuss fully.
been granted by it. (1st par., Sec. 6, Rule 38, ROC arrangement and SUGGESTED ANSWER: I would file a petition for relief
numbering supplied) from judgment and oppose the motion for the issuance of a writ of
execution on the ground of mistake and excusable negligence
7. What are the grounds for filing a petition for resulting from the death of Delias former counsel.
relief from denial of appeal ? The entry of judgment has not yet exceeded six (6) months,
SUGGESTED ANSWER: When a judgment or final order is and no more than sixty (60) days from Delias knowledge of the
rendered by any court in a case, and failure to appeal.
a. a party thereto, by
1) fraud, 10. What is the remedy for an order denying a
2) accident, petition for relief or any similar motion seeking relief from
3) mistake, or judgment ?
4) excusable negligence, SUGGESTED ANSWER: The aggrieved party may file an
b. has been prevented from taking an appeal, appropriate civil action as provided in Rule 65 (ROC, rule 41, Sec. 1,
c. he may file a petition 1) in such court, and 2) in the last par., as amended by A.M. No. 07-7-12-SC effective December 27,
same case 2007) which may be a petition for certiorari, prohibition or
d. praying that the appeal be given due course. (Sec. 2, mandamus.
Rule 38, ROC numbering and arrangement supplied)
APPEALS
8. What are the effects of granting petition for
relief from denial of appeal ?
SUGGESTED ANSWER: GENERAL CONSIDERATIONS
a. Where the denial of an appeal is set aside,
b. the lower court shall be required 1. What is the nature of an appeal, and what is an
1) to give due course to the appeal and effect of such nature ?
2) to elevate the record of the appealed SUGGESTED ANSWER: Appeal is not a constitutional
case right, but a mere statutory privilege. It must be exercised strictly in
accordance with the provisions of the law and rules. Specifically,
the payment of docket fees within the period for perfecting an
 109
appeal is mandatory. Sufficient reason must be given to be
exempt from this stringent rule. [Province of Camarines Sur, etc., v.
Heirs of Agustin Pato, et al., G. R. No. 151084, July 2, 2010; Asian Spirit
Airlines (Airline Employees Cooperative) v. Spouses Bautista, et al., G. R.
No. 164668, February 14, 2005]
2. Distinguish Appeal FROM certiorari.
SUGGESTED ANSWER: The following are the distinctions:
a. As to the Purpose. Certiorari is a remedy designed
for the correction of errors of jurisdiction, not errors of judgment.
Reason: When a court exercises its jurisdiction, an error
committed while so engaged does not deprive it of the jurisdiction
being exercised when the error is committed. If it did, every error
committed by a court would deprive it of its jurisdiction and every
erroneous judgment would be a void judgment. This cannot be
allowed. The administration of justice would not survive such a
rule. Consequently, an error of judgment that the court may
commit in the exercise of its jurisdiction is not correctable through
the original civil action of certiorari.
The supervisory jurisdiction of a court over the issuance of a
writ of certiorari cannot be exercised for the purpose of reviewing
the intrinsic correctness of a judgment of the lower court on the
basis either of the law or the facts of the case, or of the wisdom or
legal soundness of the decision. Even if the findings of the court
are incorrect, as long as it has jurisdiction over the case, such
correction is normally beyond the province of certiorari. Where the
error is not one of jurisdiction, but of an error of law or fact a
mistake of judgment appeal is the remedy.
b. As to the Manner of Filing. Over an appeal, the CA
exercises its appellate jurisdiction and power of review. Over a
certiorari, the higher court uses its original jurisdiction in
accordance with its power of control and supervision over the
proceedings of lower courts.
An appeal is thus a continuation of the original suit, while a
petition for certiorari is an original and independent action that was
not part of the trial that had resulted in the rendition of the
judgment or order complained of. The parties to an appeal are the
original parties to the action. In contrast, the parties to a petition
for certiorari are the aggrieved party (who thereby becomes the
petitioner) against the lower court or quasi-judicial agency, and the
prevailing parties (the public and the private respondents,
respectively).
c. As to the Subject Matter. Only judgments or final
orders and those that the Rules of Court so declare are
appealable. Since the issue is jurisdiction, an original action for
certiorari may be directed against an interlocutory order of the
lower court prior to an appeal from the judgment; or where there is
no appeal or any plain, speedy or adequate remedy.
d. As to the Period of Filing. Ordinary appeals should
be filed within fifteen days from the notice of judgment or final
order appealed from. Where a record on appeal is required, the
appellant must file a notice of appeal and a record on appeal
within thirty days from the said notice of judgment or final order. A
petition for review should be filed and served within fifteen days
from the notice of denial of the decision, or of the petitioners
timely filed motion for new trial or motion for reconsideration. In an
appeal by certiorari, the petition should be filed also within fifteen
days from the notice of judgment or final order, or of the denial of
the petitioners motion for new trial or motion for reconsideration.
On the other hand, a petition for certiorari should be filed
not later than sixty days from the notice of judgment, order, or
resolution. If a motion for new trial or motion for reconsideration
was timely filed, the period shall be counted from the denial of the
motion.
e. As to the Need for a Motion for Reconsideration.
A motion for reconsideration is generally required prior to the filing
of a petition for certiorari, in order to afford the tribunal an
opportunity to correct the alleged errors. Note also that this
motion is a plain and adequate remedy expressly available under
the law. Such motion is not required before appealing a judgment
or final order. (Tible & Tible Company, Inc., et al. G.R. No. 155806,
April 8, 2008)
3. Grounds for appeal DISTINGUISHED FROM
the grounds for certiorari.
SUGGESTED ANSWER: If the error is in the wisdom of the
trial court's findings and not of jurisdiction, the proper remedy
would be appeal and not certiorari. (Philippine National Bank v. Hon.
Sayo, et al., G.R. No.129918, July 9, 1998)
4. What is a final order ? Give an example.
SUGGESTED ANSWER: One which disposes of the
subject matter in its entirety or terminates a particular proceeding
or action, leaving nothing else to be done but to enforce by
execution what has been determined by the court.
An order dismissing a case without prejudice is a final order
if no motion for reconsideration or appeal therefrom is timely filed.
As was stated thus, the dismissal without prejudice of a complaint
does not however mean that said dismissal order was any less
 110
final. Such order of dismissal is complete in all details, and though
without prejudice, nonetheless finally disposed of the matter. It
was not merely an interlocutory order but a final disposition of the
complaint. (Banares II, et al. v. Balising, et al., G.R. No. 132624, March
13, 2000 citing Olympia International v. Court of Appeals)
5. What is an interlocutory order ?
SUGGESTED ANSWER: One which does not dispose of a
case completely, but leaves something more to be adjudicated
upon.
The word interlocutory refers to something intervening
between the commencement and the end of the suit which
decides some point or matter but is not a final decision of the
whole controversy. m In that sense, it does not attain finality since
there leaves something else to be done by the RTC with respect to
the merits of the case. (Sps. Gutierrez v. Sps. Valiente, et al., G. R. No.
166802, July 4, 2008 citing Pobre v. Court of Appeals, G.R. No. 141805,
July 8, 2005, 463 SCRA 50, 60; Ramiscal, Jr. v. Sandiganbayan, G.R.
Nos. 140576-99, December 13, 2004, 446 SCRA 166, 177)
6. Why is it that an interlocutory order is not
appealable ?
SUGGESTED ANSWER: An interlocutory order is always
under the control of the court and may be modified or rescinded
upon sufficient grounds shown by any time before final judgment.
This prescinds from a courts inherent power to control its
process and orders so as to make them conformable to law and
justice. It is immaterial that the judge who exercises such powers
is different from the one who issued the rescinded or amended
order since the former is not legally prevented from revoking the
interlocutory order of another judge in the very litigation
subsequently assigned to him for judicial action. The only
limitation is that the judge can not act with grave abuse of
discretion, or that no injustice results thereby. (Ley Construction and
Development Corporation, et al., v. Union Bank of the Philippines, G.R.
No. 133801, June 27, 2000)
7. When does an order become final and executory
? errors not assigned ? Explain.
SUGGESTED ANSWER: The law grants an aggrieved
party a period of fifteen (15) days from his receipt of the courts
decision or order disposing of the action or proceeding to appeal
or move to reconsider the same.
After the lapse of the fifteen-day period, an order becomes
final and executory and is beyond the power or jurisdiction of the
court which rendered it to further amend or revoke. A final
judgment or order cannot be modified in any respect, even if the
modification sought is for the purpose of correcting an erroneous
conclusion by the court which rendered the same. (Banares II, et al.,
v. Balising, et al., G.R. No. 132624, March 13, 2000 citing Olympia
International v. Court of Appeals)
8. What is the remedy when order of dismissal
without prejudice has already become final and executory ?
SUGGESTED ANSWER: After the order of dismissal of a
case without prejudice has become final, and therefore becomes
outside the courts power to amend and modify, a party wishes to
reinstate the case has no other remedy but to file a new complaint.
The dismissal of the case, and the lapse of the
reglementary period to reconsider or set aside the dismissal,
effectively operated to remove the case from the Courts docket.
Even assuming the dismissal to be without prejudice, the case
could no longer be reinstated or revived by mere motion in the
original docketed action, but only by the filing of another complaint
accompanied, of course, by the payment of the corresponding
filing fees prescribed by law.
Since theoretically every final disposition of an action does
not attain finality until after fifteen (15) days therefrom, and
consequently within that time the action still remain within the
control of the court, the plaintiff may move and set aside his notice
of dismissal and revive his action before that period lapses. But
after dismissal has become final after the lapse of the fifteen-day
reglementary period, the only way by which the action may be
resuscitated or revived is by the institution of a subsequent
action through the filing of another complaint and the payment of
fees prescribed by law. This is so, because upon attainment of
finality of the dismissal through the lapse of said reglementary
period, the Court loses jurisdiction and control over it and can no
longer make a disposition in respect thereof inconsistent with such
dismissal. (Banares II, et al. v. Balising, et al., G.R. No. 132624, March
13, 2000 citing Ortigas & Company Limited Partnership v. Velasco)
9. Do appellate courts have discretion to consider
SUGGESTED ANSWER: Generally, an appellate court
may only pass upon errors assigned. However, this rule is not
without exceptions. In the following instances, the Supreme Court
ruled that an appellate court is accorded a broad discretionary
power to waive the lack of assignment of errors and consider
errors not assigned:
 111
a. Grounds not assigned as errors but affecting the
jurisdiction of the court over the subject matter;
b. Matters not assigned as errors on appeal but are
evidently plain or clerical errors within contemplation of law;
c. Matters not assigned as errors on appeal but
consideration of which is necessary in arriving at a just decision
and complete resolution of the case or to serve the interests of
justice or to avoid dispensing piecemeal justice;
d. Matters not specifically assigned as errors on appeal
but raised in the trial court and are matters of record having some
bearing on the issue submitted which the parties failed to raise or
which the lower court ignored;
e. Matters not assigned as errors on appeal but closely
related to an error assigned;
f. Matters not assigned as errors on appeal but upon
which the determination of a question properly assigned, is
dependent. (Catholic Bishop of Balanga v. Court of Appeals, et al., 264
SCRA 181 cited in Viron Transportation Co., Inc. v. Court of Appeals, et
al., G. R. No. 117020, April 4, 2003)
There is no reason why this rule should not apply to
administrative bodies as well. (Diamonon v. Department of Labor and
Employment, et al., G.R. No. 108950, March 7, 2000)
10. May litigants raise an issue for the first time on
appeal ? Why ? Are there any exceptions to this rule ?
SUGGESTED ANSWER: Generally, matters not raised in
the complaint cannot be raised for the first time on appeal (Lipat,
et al., v. Pacific Banking Corporation, et al., G. R. No. 142435, April 30,
2003), as this would contravene the basic rules of fair play and
justice. Furthermore, the reviewing tribunal would not anymore
review but would have to resolve issues for the first time.
There are a number of instances where the Supreme Court
has relaxed observance of procedural rules, noting that
technicalities are not ends in themselves but exist to protect and
promote substantive rights of litigants. Certain rules ought to be
applied with severity and rigidity if by so doing, the very reason for
their existence would be defeated. Hence, when substantial
justice plainly requires, exempting a particular case from the
operation of technicalities should not be subject to cavil. (Sy v.
Court of Appeals, et al., G.R. No. 127263, April 12, 2000)
11. May a change of theory on appeal be allowed ?
SUGGESTED ANSWER: No. A change of theory on
appeal is not allowed. [Ortega v. Social Security Commission, et al., G.
R. No. 176150, June 25, 2008 citing Drilon v. Court of Appeals, 336 Phil.
949-956; 270 SCRA 211 (1997)]
Thus, events subsequent to the allegations in the pleadings
could not be considered by the appellate court since a factual
questions may not be raised for the first time on appeal and
documents forming no part of the proofs before the appellate court
will not be considered in disposing of the issues in an action.
(Ibid., citing F.F. Marine Corporation v. National Labor Relations
Commission, Second Division, G. R. No. 152039, April 8, 205, 455 SCRA
154 which adds that the riule also applies to decisions elevated fro review
which originated from a quasi-judicial body.)
12. What is meant by residual jurisdiction of courts in
appealed cases ?
SUGGESTED ANSWER: This is the jurisdiction retained by
the trial court, prior to the transmittal of the original record on
appeal to the appellate court. Thus, the trial court may still
perform the following:
a. Issue orders for the protection and preservation of
the rights of the parties which do not involve any matter litigated by
the appeal.
b. Approve compromises.
c. Permit appeals of indigent litigants.
d. Order executions pending appeal.
e. Allow withdrawal of the appeal. (last par., Sec. 9, Rule
41, ROC)
13. Is the payment of appellate docket fee mandatory ?
SUGGESTED ANSWER: Yes. The payment of the docket
and other legal fees within the prescribed period is both mandatory
and jurisdictional. The Rules of Court, as amended, specifically
provides that appellate court docket and other lawful fees should
be paid within the period for taking an appeal. Hence, Section 4 of
Rule 41. Section 1 (c), Rule 50 of the Rules of Court provides:
Failure of the appellant to pay the docket and other fees as
provided in Section 4 of Rule 41 is a ground for the dismissal of
the appeal.
A court acquires jurisdiction over the subject matter of the
action only upon the payment of the correct amount of docket fees
regardless of the actual date of filing of the case in court. In
Gegare v. Court of Appeals, the Supreme Court upheld the
appellate courts dismissal of an appeal for failure of petitioner to
pay the docket fees within the reglementary period despite a
notice from the Court of Appeals informing him that such fees had
to be paid within fifteen (15) days from receipt of such notice.
 112
(Barangay 24 of Legazpi City etc. v. Imperial, G.R. No. 140321, August
24, 2000)
Payment of docket fees mandatory only from the RTC to CA
and from the CA to the SC. Appeal is not a right, but a mere
statutory privilege. Corollary to this principle is that the appeal
must be exercised strictly in accordance with provisions set by
law.
The payment of the appellate docket fee is not a mere
technicality of law or procedure. It is an essential requirement,
without which the decision or final order appealed from would
become final and executory as if no appeal was filed at all.
14. What is the reason why payment of docket fees is
mandatory ?
SUGGESTED ANSWER: The right to appeal is a purely
statutory right. Not being a natural right or a part of due process,
the right to appeal may be exercised only in the manner and in
accordance with the rules provided therefor. (Bautista v. Unangst, et
al., G.R. No. 173002, July 4, 2008 citing various cases)
For this reason, payment of the full amount of the appellate
court docket and other lawful fees within the reglementary period
is mandatory and jurisdictional. (supra citing various cases citing
Ayala Land, Inc. v. Carpo, G.R. No. 140162, November 22, 2000, 345
SCRA 579, 584; Lazaro v. Court of Appeals, G.R. No. 137761, April 6,
2000, 330 SCRA 208, 213)
15. The petitioner claims that the payment of the
docketing fee was not seasonably made because of the
sickness and death of its counsel. But just the same it paid
the docketing feet, albeit late, for its appeal. Should the
appeal be allowed ? Explain your answer.
SUGGESTED ANSWER: No. The payment of the
docketing fee was too late. Approximately 15 months had already
lapsed from the time the notice of appeal was filed by the former
counsel up to the time the new counsel paid the corresponding
docket fees. (Province of Camarines Sur, etc., v. Heirs of Agustin Pato,
et al., G. R. No. 151084, July 2, 2010)
The strict application of the jurisdictional nature of the rule
on payment of appellate docket fees may be mitigated under
exceptional circumstances to better serve the interest of justice.
Petitioners attempt to pass the buck on the sickness of its
former counsel, is not a compelling reason for the Supreme Court
to relax the strict requirement for the timely payment of appellate
docket fees. While the Supreme Court expressed grief over the
death of the former counsel, his sickness was not of such a nature
which would have impaired his mental faculties and one which
would have prevented him from filing the docket fees. From the
time he filed a notice of appeal assailing the RTC Decision, the
former counsel was still the Provincial Legal Officer for 6 months
prior to his transfer to his new post at the National Commission on
Indigenous Peoples. Even if the corresponding docket fees were
not paid upon the filing of the notice of appeal, still, the former
counsel could have rectified the situation by paying the fees within
the 15-day reglementary period to file an appeal. As manifested
by petitioner, the former counsel was in the practice of law for 10
years, he should have, therefore, seen to it that the stringent
requirements for an appeal were complied with. (Ibid.,)
16. Is the filing of the Notice of Appeal, without
payment of the correct appellate docket fee, perfect the
appeal ?
SUGGESTED ANSWER: No. The mere filing of the
Notice of Appeal is not enough, for it must be accompanied by the
payment of the correct appellate docket fees. Payment in full of
docket fees within the prescribed period is mandatory. It is an
essential requirement without which the decision appealed from
would become final and executory as if no appeal had been filed.
Failure to perfect an appeal within the prescribed period is not a
mere technicality but jurisdictional and failure to perfect an appeal
renders the judgment final and executory. [Province of Camarines
Sur, etc., supra citing M. A. Santander Construction Inc. v. Villanueva 484
Phil. 500 (2004), emphasis supplied]
In Guevarra vs. Court of Appeals, where the docket fees
were not paid in full within the prescribed period of fifteen (15)
days but were paid forty-one (41) days late due to "inadvertence,
oversight, and pressure of work," it was held that the Court of
Appeals correctly dismissed the appeal. In Lee vs. Republic of the
Philippines, where half of the appellate docket fee was paid within
the prescribed period, while the other half was tendered after the
period within which payment should have been made, we ruled
that no appeal was perfected. Clearly, where the appellate docket
fee is not paid in full within the reglementary period, the decision of
the trial court becomes final and no longer susceptible to an
appeal. For once a decision becomes final, the appellate court is
without jurisdiction to entertain the appeal. (Ibid. . at 504-505)
17. Is failure to pay docket fees a mandatory ground
for dismissing an appeal ?
SUGGESTED ANSWER: Not always. Where the failure to
pay the correct docketing fees was due to justifiable reasons, then
 113
the appeal is not dismissed. (Bautista v. Unangst, et al., G.R. No.
173002, July 4, 2008)
.The strict application of the jurisdictional nature of the rule
on dismissal for non payment of appellate docket fees may be
mitigated under exceptional circumstances to better serve the
interest of justice. (Bautista, supra citing Aranas v. Endona, G.R. No.
L-32719, October 23, 1982, 117 SCRA 753, 758; see Bank of America,
NT & SA v. Gerochi, G.R. No. 73210, February 10, 1994, 230 SCRA 9,
15)
It is always within the power of the Supreme Court to
suspend its own rules, or to except a particular case from their
operation, whenever the purposes of justice require it. (Bautista,
supra citing Chronicle Securities Corporation v. National Labor Relations
Commission, G.R. No. 157907, November 25, 2004, 444 SCRA 342, 348-
349; Equitable PCI Bank v. Ku, G.R. No. 142950, March 26, 2001, 355
SCRA 309, 316; Philippine National Bank v. Court of Appeals, G.R. No.
108870, July 14, 1995, 246 SCRA 304, 316-317)
18. Give an example where the Supreme Court
relaxed the rule of dismissal for non-payment of the appellate
docketing fee.
SUGGESTED ANSWER: Where an appellant in good faith
paid less than the correct amount for the docket fee because that
was the amount he was required to pay by the clerk of court, and
he promptly paid the balance, it is error to dismiss his appeal
because (e)very citizen has the right to assume and trust that a
public officer charged by law with certain duties knows his duties
and performs them in accordance with law. [Bautista v. Unangst, et
al., G.R. No. 173002, July 4, 2008 citing Segovia v. Barrios, 75 Phil. 764,
767 (1946)]
To penalize such citizen for relying upon said officer in all
good faith is repugnant to justice. (Ibid., additionally citing Ayala Land,
Inc. v. Carpo, G.R. No. 140162, November 22, 2000, 345 SCRA 579,
584)
19. What is the reason for relaxing the rigid rule on
dismissal for non-payment of the appellate docket fee ?
Explain.
SUGGESTED ANSWER: To afford the parties the
opportunity to fully ventilate their cases on the merits. This is in
line with the time-honored principle that cases should be decided
only after giving all parties the chance to argue their causes and
defenses. (Bautista v. Unangst, et al., G.R. No. 173002, July 4, 2008
citing Eastland Construction & Development Corporation v. Mortel, G.R.
No. 165648, March 23, 2006, 485 SCRA 203, 213; El Reyno Homes, Inc.
v. Ong, G.R. No. 142440, February 17, 2003, 397 SCRA 563, 570;
Republic v. Court of Appeals, G.R. No. 130118, July 9, 1998, 292 SCRA
243, 251-252)
It is far better to dispose of a case on the merits which is a
primordial end, rather than on a technicality, if it be the case, that
may result in injustice. (Bautista, supra citing Gutierrez v. Secretary of
the Department of Labor and Employment, G.R. No. 142248, December
16, 2004, 447 SCRA 107, 120; Serrano v. Galant Maritime Services, Inc.,
G.R. No. 151833, August 7, 2003, 408 SCRA 523, 528) The emerging
trend in the rulings of the Supreme Court is to afford every party-
litigant the amplest opportunity for the proper and just
determination of his cause, free from the constraints of
technicalities. (Bautista, supra citing additionally Aonuevo, Jr. v. Court
of Appeals, G.R. No. 152998, September 23, 2003, 411 SCRA 621, 626)
Technicality and procedural imperfections should thus not
serve as bases of decisions. (Bautista, supra citing Crystal Shipping,
Inc. v. Natividad, G.R. No. 154798, October 20, 2005, 473 SCRA 559,
566) In that way, the ends of justice would be better served. For,
indeed, the general objective of procedure is to facilitate the
application of justice to the rival claims of contending parties,
bearing always in mind that procedure is not to hinder but to
promote the administration of justice. (Bautista, supra citing Asian
Spirit Airlines v. Bautista, G.R. No. 164668, February 14, 2005, 451
SCRA 294, 301; El Reyno Homes, Inc. v. Ong, supra; Chronicle
Securities Corporation v. National Labor Relations Commission, supra )
20. Is the mandatory appeal fee applicable to
appeals from the MTC ? Why ?
SUGGESTED ANSWER: No. The Rules do not mandate
dismissal of appeal from MTC for non-payment of appeal fees.
(Sps. Badillo v. Hon. Tayag, et al., G. R. No. 145846, April 3, 2003 and
companion case citing Fontanar v. Bonsubre, 145 SCRA 663)
21. The spouses Badillo filed a case for
ejectment in the MTC against Triad Construction and National
Housing Authority (NHA). After due proceedings the MTC
ordered the defendants to vacate the land, return the
possession to the spouses, pay rental for the use and
occupation, attorneys fees and litigation expenses. NHA
filed a notice of appeal but failed to pay the filing fees.
Did the failure of NHA to timely pay the appellate docket
fee a ground to dismiss the appeal, and is NHA exempt from
filing a supersedeas bond to stay execution of the MTC
judgment ?
SUGGESTED ANSWER: No, the failure of NHA to pay the
appellate docket fee is not a valid ground to dismiss the appeal.
 114
The 1997 Rules of Civil Procedure do not mandate the dismissal
of an appeal from the MTC to the RTC as a consequence of the
nonpayment of the required fee.
Under the 1997 Rules of Civil Procedure, parties perfect an
appeal from the judgment of the MTC to the RTC by filing a notice
of appeal within the fifteen (15) day reglementary period. Such
failure to pay bestows on the appellate court a directory, not a
mandatory, power to dismiss an appeal. (Sps. Badillo v. Hon.Tayag,
et al., G. R. No. 145846, April 3, 2003 and companion case)
There is no need to file a supersedeas bond when a case
involves provable rents or damages incurred by a government-
owned or controlled corporation, because the real party in interest
is the Republic of the Philippines which is presumed to be always
solvent. (Sps. Badillo, supra)
22. What is the material date rule in appeals ?
SUGGESTED ANSWER: The rule to the effect that the
petition shall state the specific material dates showing that it was
filed within the period fixed herein, should be taken to refer more
particularly to the date of receipt of the award, judgment, final
order or resolution appealed from for the purpose of determining
whether or not the appeal or petition was reasonably brought up to
the appellate body or tribunal. (Romero v. Civil Service Commission,
G.R. No. 139288, February 28, 2000)
23. Is a record on appeal required for appeals in
contempt cases ?
SUGGESTED ANSWER: No. Contempt proceedings is not
one of those instances where a record on appeal is required to
perfect an appeal. (Cortes v. Judge Bangalan, etc. A.M. No. MTJ-97-
1129, January 19, 2000)
24. Give instances where a record on appeal is
required.
SUGGESTED ANSWER: In the case of Roman Catholic
Archbishop of Manila v. Court of Appeals, 258 SCRA 186, 194, it
was held that multiple appeals are allowed in special
proceedings, in actions for recovery of property with accounting, in
the special civil action of eminent domain and foreclosure of
mortgage. These are the instances where a record on appeal is
required to perfect an appeal. (Cortes v. Judge Bangalan, etc. A.M.
No. MTJ-97-1129, January 19, 2000)
25. What is the rationale for multiple appeals ?
SUGGESTED ANSWER: The rationale behind allowing
more than one appeal in the same case is to enable the rest of the
case to proceed in the event that a separate and distinct issue is
resolved by the court and held to be final. (Roman Catholic
Archbishop of Manila v. Court of Appeals, 258 SCRA 186, 194)
26. Are multiple appeals allowed in legal separation ?
SUGGESTED ANSWER: No. Multiple appeals not allowed
in action for legal separation.
The issues involved in the case will necessarily relate to the
same marital relationship between the parties. The effects of legal
separation, such as entitlement to live separate lives, dissolution
and liquidation of the absolute community or conjugal partnership,
and custody of the minor children, follow from the decree of legal
separation. They are not separate or distinct matters that may be
resolved by the court and become final prior to or apart from the
decree of legal separation. Rather, they are mere incidents of
legal separation. Thus, they may not be subject to multiple
appeals. (Banez v. Banez, G.R. Nos. 132592, 133628, January 23,
2002)
27. What is the nature of a courts power to dismiss
an appeal ?
SUGGESTED ANSWER: The court has the discretion to
dismiss or not to dismiss an appeal. It is a power conferred on
the court, not a duty. The discretion must be a sound one, to be
exercised in accordance with the tenets of justice and fair play,
having in mind the circumstances obtaining in each case.
Technicalities, however, must be avoided. The law abhors
technicalities that impede the cause of justice. The courts primary
duty is to render or dispense justice. (Juaban, et al., v. Bancale, et al.,
G.R. No. 156011, July 3, 2008 citing Great Southern Maritime Services
Corp. v. Acua, G.R. No. 140189, February 28, 2005, 452 SCRA
422, 436)
Litigations must be decided on their merits and not on
technicality. Every party litigant must be afforded the amplest
opportunity for the proper and just determination of his cause, free
from the unacceptable plea of technicalities. Thus, dismissal of
appeals purely on technical grounds is frowned upon where the
policy of the court is to encourage hearings of appeals on their
merits and the rules of procedure ought not to be applied in a very
rigid, technical sense; rules of procedure are used only to help
secure, not override substantial justice. It is a far better and more
prudent course of action for the court to excuse a technical lapse
and afford the parties a review of the case on appeal to attain the
 115
ends of justice rather than dispose of the case on technicality and
cause a grave injustice to the parties, giving a false impression of
speedy disposal of cases while actually resulting in more delay, if
not a miscarriage of justice. (Juaban, supra)
reversal as to one operates as a reversal as to all. This exception
which is based on a communality of interest of said parties is
recognized in this jurisdiction. (Dadizon, et al., v. Bernadas, etc., G.
R. No. 172367, June 5, 2009)

28. What are the limits of an appellate courts APPEAL FROM MTC TO RTC
discretion in dismissing an appeal ?
SUGGESTED ANSWER: In deciding a case, the
appellate court has the discretion whether or not to dismiss the MODES AND PERIODS OF APPEAL.
same, which discretion must be exercised soundly and in a. Appeal from Municipal Trial Court to Regional Trial
accordance with the tenets of justice and fair play, taking into Court
account the circumstances of the case. [Tan, et al., v. Ballena, et al., 1) Appeal in ordinary cases:
G. R. No. 168111, July 4, 2008 citing Aguam v. Court of Appeals, a) Filing notice of appeal with the Municipal
388 Phil. 587, 593 (2000), in turn cited in Vallejo v. Court of Appeals, G.R. Trial Court that rendered the judgment or order
No. 156413, 14 April 2004, 427 SCRA 658, 668] appealed from. (Sec. 3, Rule 40, ROC)
It is a far better and more prudent cause of action for the b) Payment of the full amount of the
court to excuse a technical lapse and afford the parties a appellate docket fee and other lawful fees. (Sec. 5,
review of the case to attain the ends of justice, rather than dispose Rule 40, ROC)
of the case on technicality and cause grave injustice to the parties, c) Within fifteen (15) days after notice to
giving a false impression of speedy disposal of cases while the appellant of the judgment or final order appealed
actually resulting in more delay, if not a miscarriage of justice. from. (Sec. 2, Rule 40, ROC)
It is a well-settled principle that rules of procedure are 2) Appeal in special proceedings and other
mere tools designed to facilitate the attainment of justice. Their cases wherein multiple appeals are allowed:
strict and rigid application, which would result in technicalities that a) Filing of notice of appeal and a record
tend to frustrate rather than promote substantial justice, must on appeal with the Municipal Trial Court that
always be eschewed. [Tan, et al., supra citing Ginete v. Court of rendered the judgment or order appealed from. (Sec.
Appeals, 357 Phil. 36, 51 (1998).] 3, Rule 40, ROC)
b) Payment of the full amount of the
29. What is the effect of a reversal of the assailed appellate docket fee and other lawful fees. (Sec. 5,
decision on the parties who did not appeal ? Rule 40, ROC)
SUGGESTED ANSWER: The general rule that in c) Within thirty (30) days after notice of the
appellate proceedings, the reversal of the judgment on appeal is judgment or final order appealed from. (Sec. 2, Rule
binding only on the parties in the appealed case and does not 40, ROC)
affect or inure to the benefit of those who did not join or were not 3) Appeal in cases decided under delegated
made parties to the appeal. (Dadizon, et al., v. Bernadas, etc., G. R. jurisdiction. In the same manner as decisions of the
No. 172367, June 5, 2009) Regional Trial Court. (Sec. 34, B.P. Blg. 129)

30. What is the exception to the general rule that the APPELLATE JURISDICTION OF REGIONAL
reversal of the assailed decision is binding only on the
parties who appealed ? TRIAL COURT
SUGGESTED ANSWER: An exception to the rule exists,
however, where a judgment cannot be reversed as to the party 1. What is the appellate jurisdiction of Regional Trial
appealing without affecting the rights of his co-debtor, or where the Courts ?
rights and liabilities of the parties appealing are so interwoven and SUGGESTED ANSWER: Regional Trial Courts shall
dependent on each other as to be inseparable, in which case a exercise appellate jurisdiction over all cases decided by
 116
Metropolitan Trial courts, Municipal Trial Courts and Municipal
Trial Courts in their respective territorial jurisdictions. (Sec. 22, B.
P. Blg. 129)
2. How shall RTCs decide appellate cases ?
SUGGESTED ANSWER: Appellate cases shall be decided
on the basis of the entire record of the proceedings had in the
court of origin and such memoranda and/or briefs as may be
submitted by the parties or required by the Regional Trial Courts.
(Sec. 22, B. P. Blg. 129)
MODES AND PERIODS OF APPEAL
1. What procedure should the RTC follow where it
finds that the MTC had no jurisdiction in a case appealed to it
from the said MTC ?
SUGGESTED ANSWER:
a. In case of affirmance of the decision or judgment
appealed from and the ground of dismissal is lack of
jurisdiction over the subject matter, the Regional Trial Court, if it
has jurisdiction thereover, shall try the case on the merits as if the
case was originally filed with it. (2nd sentence, 1st par., Sec. 8, Rule
40, ROC words not in bold supplied)
b. If the case was tried on the merits by the lower
court without jurisdiction over the subject matter, the Regional
Trial Court on appeal shall not dismiss the case if it has original
jurisdiction thereof but shall decide the case on the merits as if the
case was originally filed with it, without prejudice to the admission
of amended pleadings and additional evidence in the interest of
justice. (2nd par., in relation to the 1st par., Sec. 8, Rule 40, ROC)
2. Spouses Morales filed a complaint against
Policarpio asserting that he surreptitiously took possession
of their lots and prepared them for planting, thereby altering
its residential outline and appearance.
Defendant countered with the allegation that
reclassification of the land was not approved by the proper
authorities and that he was duly constituted as tenant thereof
by the previous owner.
The municipal trial court received evidence on the issue
of right of possession and he land's proper classification.
Finding the land to be agricultural and the fact that tenancy
was in issue, the municipal trial court dismissed the case for
lack of jurisdiction.
The plaintiffs appealed to the Regional Trial Court who
heard the case and found that the municipal trial court had
jurisdiction because the land was duly reclassified from
agricultural to residential and that tenancy was not involved.
If you were the RTC judge how will you proceed ?
Should you decide the issues on the merits or should you
remand the case to the municipal trial court for further
proceedings ?
SUGGESTED ANSWER: The case should be decided on
the merits and should not be remanded to the municipal trial court.
Where the parties have presented their respective evidence before
the MTC, a remand becomes a useless superfluity, an undue
imposition on the time and dockets of courts.
3. When is a remand to the MTC necessary ?
Reason out your answer.
SUGGESTED ANSWER: A remand is necessary only
when there has been no trial on the merits.
A remand would unnecessarily impose on the parties the
concomitant difficulties and expenses of another proceeding
where they would have to present the same evidence again. This
clearly runs counter to Section 6, Rule 1 of the Rules of Court,
which mandates liberal construction of the Rules to attain just,
speedy and inexpensive disposition of every action or proceeding.
(Spouses Morales v. Court of Appeals, et al., G.R. No. 126196, January
28, 1998)
4. May the Regional Trial Court allow the reception
of additional evidence on appeal ? Reasons.
SUGGESTED ANSWER: Although Regional Trial Courts
should decide cases on appeal on the basis solely of the record of
the proceedings in Municipal Trial Courts and other courts of equal
rank, nonetheless, the principle of estoppel may bar a party from
questioning the reception of additional evidence, as in this case.
In Tijam v. Sibonghanoy, the Supreme Court ruled: A
party can not invoke the jurisdiction of a court to secure affirmative
relief against his opponent and, after obtaining or failing to obtain
such relief, repudiate or question that same jurisdiction. (Dean v.
Dean, 136 Or. 694, 86 A.L.R. 79) In the case just cited, by way of
explaining the rule, it was further said that the question whether
the court had jurisdiction either of the subject-matter of the action
or of the parties was not important in such cases because the
party is barred from such conduct not because the judgment or
order of the court is valid and conclusive as an adjustment, but for
 117
the reason that such a practice can not be tolerated obviously for
reasons of public policy.
Furthermore, it has been held that after voluntarily
submitting a cause and encountering an adverse decision on the
merits, it is too late for the loser to question the jurisdiction or
power of the court. (Pease v. Rathbun-Jones etc., 243 U.S. 273, 61 L.
Ed. 715, 37 S. Ct. 283; St. Louis etc. v. McBride, 141 U.S. 127, 35 L. Ed.
659)
And in Littleton v. Burgess, 16 Wyo. 58, the Court said that
it is not right for a party who has affirmed and invoked the
jurisdiction of a court in a particular matter to secure an affirmative
relief, to afterwards deny that same jurisdiction to escape a
penalty.
Upon the principle stated in Sibonghanoy, we hold that
petitioner cannot be permitted to question at this stage the
reception of additional evidence and ocular inspection of property
after she participated but eventually lost in what she now calls the
irregular proceedings of the trial court. (Abellera v. Court of Appeals,
et al., G.R. No. 127480, February 28, 2000)
5. May a decision in unlawful detainer be the
subject of an injunction ?
SUGGESTED ANSWER: Injunction should not issue to
restrain the decision in unlawful detainer.
Where the action is one of illegal detainer and the right of
the plaintiff to recover the premises is seriously placed in issue in
a proper judicial proceeding, it is more equitable and just and less
productive of confusion and disturbance of physical possession,
with all its concomitant inconvenience and expense for the court in
which the issue of legal possession, whether involving ownership
or not, is brought to restrain, should a petition for preliminary
injunction be filed with it, the effects of any order or decision in the
unlawful detainer case in order to await the final judgment in the
more substantive case involving legal possession or ownership.
(Aznar Brothers Realty Co. v. Court of Appeals, et al., G.R. No. 128102,
March 7, 2000)
6. May there be an ex-parte issuance of a writ of
demolition ? Explain.
SUGGESTED ANSWER. There is no ex-parte issuance of
writ of demolition.
The attainment of the objective of fully executing the
judgment against the defendant in an ejectment case does not
justify the immediate and ex-parte issuance of an order authorizing
demolition. When demolition or removal of the improvements on
the property subject of the execution is made, a hearing is
necessary before its issuance. [Sec. 10 (d), Rule 39, ROC]
Otherwise, there would be a grave abuse of authority. (Bajet v.
Judge Areola, A.M. No. RTJ-01-1651, June 19, 2001)
APPEAL FROM THE RTC TO CA
1. How are appeals taken from the Regional Trial
Court to the Court of Appeals ?
SUGGESTED ANSWER:
1) Appeal in ordinary cases:
a) Filing of notice of appeal with the Regional Trial
Court that rendered the judgment or order appealed from.
(Sec. 2 [a], Rule 41, ROC)
b) Payment of the appellate docket fee and other
lawful fees to the Regional Trial Court. (Sec. 4, Rule 41,
ROC)
c) Within fifteen (15) days from notice of the
judgment or final order appealed from. (Sec. 3, Rule 41,
ROC)
2) Appeals in special proceedings and other cases
wherein multiple appeals are allowed:
a) Filing of a notice of appeal and record on
appeal with the Regional Trial Court that rendered the
judgment or order appealed from. (Sec. 2 [a], Rule 42, ROC)
b) Payment of the appellate docket fee and other
lawful fees. (Sec. 4, Rule 41, ROC)
c) Within thirty (30) days after notice of the
judgment or final order appealed from. (Sec. 3, Rule 41,
ROC)
3) Appeals of judgments in exercise of appellate
jurisdiction:
a) Filing of verified petition for review with the
Court of Appeals. (Sec. 1, Rule 42, ROC)
b) Payment of docket and other lawful fees and
deposit of P500.00 for costs. (Sec. 1, Rule 42, ROC)
c) Within fifteen (15) days from notice of the
decision sought to be reviewed or of the denial of the
petitioner's motion for new trial or reconsideration filed in
due time after judgment.
d) Additional period of fifteen (15) days, only
after motion for extension, payment of docketing and other
lawful fees and further extension of fifteen (15) days only for
the most compelling reasons. (Sec. 1, Rule 42, ROC)
 118
2. When is an appeal from the Regional Trial Court to
the Court of Appeals perfected ?
SUGGESTED ANSWER:
a. If by notice of appeal. A party's appeal by notice of
appeal is deemed perfected as to him upon the filing of the notice
of appeal in due time.
The court loses jurisdiction over the case upon the
perfection of the appeals filed in due time and the expiration of the
time to appeal of other parties.
b. If by record on appeal. A party's appeal by record on
appeal is deemed perfected as to him with respect to the subject
matter thereof upon the approval of the record on appeal filed in
due time.
The court loses jurisdiction only over the subject matter of
the appeal upon the approval of the records on appeal filed in due
time and the expiration of the time to appeal of the other parties.
(Sec. 9, Rule 41, ROC)
3. What is the effect of perfection of an appeal and
transmittal of the records to the appellate court ?
SUGGESTED ANSWER: After perfection of the appeal and
the transmittal of the records, the trial court loses jurisdiction over
the case. Henceforth, it may no longer grant a motion for, or issue
a writ of immediate execution. To do so would be an abuse of
discretion. (Sec. 2 and 3, Rule 39 cited in Diesel Construction Co. Inc.
v. Jollibee Foods Corp., G.R. No. 136805, January 28, 2000)
4. How may decisions of a Regional Trial Court
rendered in aid of its appellate jurisdiction be appealed ?
SUGGESTED ANSWER: The decision of Regional Trial
Courts on such cases shall be appealable by petition for review to
the Court of Appeals which may give it due course only when the
petition shows prima facie that the lower court has committed an
error of fact or law that will warrant a reversal or modification of the
decision or judgment sought to be reviewed. (last sentence, Sec.
22, B.P. Blg. 129)
5. The Regional Trial Court (RTC) affirmed the
appealed decision of the Municipal Trial Court (MTC). You are
the counsel for the defeated party and he tells you to appeal
the RTC decision.
a. What mode of appeal will you adopt ?
b. Within what time and in what court should you
file your appeal ?
SUGGESTED ANSWER:
a. I shall file a petition for review under Rule 42 of the
Rules of Court.
b. I shall file the petition for review within fifteen (15)
days from notice of the decision subject of the appeal or from
receipt of the denial of a motion for new trial or reconsideration
seasonably filed. The petition shall be filed in the Court of
Appeals.
APPELLATE JURISDICTION OF COURT OF
APPEALS
1. What is the appellate jurisdiction of the Court of
Appeals over decisions of Regional Trial Courts ?
SUGGESTED ANSWER: The Court of Appeals shall
exercise :
a. Exclusive original jurisdiction over actions for annulment
of judgments of Regional Trial Courts; and
b. Exclusive appellate jurisdiction over all final judgments,
decisions, resolutions, orders, or awards of Regional Trial Courts.
(Sec. 9, B.P. Blg. 129 paraphrasing supplied)
2. What may be appealed from the Regional
Trial Courts to the Court of Appeals ?
SUGGESTED ANSWER: An appeal may be taken from a
judgment or final order that completely disposes of the case or of a
particular matter therein when declared by these Rules to be
appealable. (ROC, Rule 41, 1st par., as amended by A.M. No. 07-7-12-
SC effective December 27, 2007)
A judgment or order denying relief under Rule 38 is final
and appealable, unlike an order granting such relief which is
interlocutory. Hence, jurisdiction then properly belonged to the
Court of Appeals. (Service Specialists, Inc. v. Sheriff of Manila , 145
SCRA 139)
Relief of judgment; a unique remedy; allowed only in
exceptional cases.- The issue of jurisdiction aside, the Supreme
Court has emphasized that a petition for relief from judgment is a
unique remedy in the sense that it is based on the principle of
equity and constitutes the petitioners final chance to prosecute or
defend his cause. Being an act of grace, a petition for relief from
judgment is usually not regarded with favor and thus, is allowed
only in exceptional cases where there are no other adequate and
 119
available remedies. (Basco y Salao v. Court of Appeals and the People
of the Philippines, G.R. No. 125290, August 9, 2000)
3. What may not be appealed ?
SUGGESTED ANSWER: No appeal may be taken from:
(a) An order denying a petition for relief or any similar
motion seeking relief from judgment;
(b) An interlocutory order;
(c) An order disallowing or dismissing an appeal;
(d) An order denying a motion to set aside a judgment by
consent, confession or compromise on the ground of fraud,
mistake or duress, or any other ground vitiating consent;
(e) An order of execution;
(f) A judgment or final order for or against one or more
of several parties or in separate claims, counterclaims, cross-
claims and third-party complaints, while the main case is pending,
unless the court allows an appeal therefrom; and
(g) An order dismissing an action without prejudice.
nd
(ROC, Rule 41, Sec. 1, 2 par., as amended by A.M. No. 07-7-12-SC
effective December 27, 2007)
NOTE: While A.M. No. 07-7-12-SC has removed An order
denying a motion an order denying a motion for new trial or
reconsideration from those that may be appealed, the author
believes that such an order is still not be subject to appeal. This is
so because Rule 41, Sec. 1 as amended by A.M. No. 07-7-12-SC
should be read in the light of Rule 37, Sec. 9 which reads, An
order denying a motion for new trial or reconsideration is not
appealable, the remedy being an appeal from the judgment or final
order.
While this may be so, the author makes the further
submission that such an order of denial, although not included in
Rule 41, Sec. 1, last paragraph as being subject to special civil
actions under Rule 65, may still be the subject of special civil
actions because there is no appeal and that resort to special civil
actions may be a speedy remedy compared with proceeding to the
hearing of the case.
4. What is the remedy where the judgment,
order, etc., is not appealable ?
SUGGESTED ANSWER: Where the judgment or final
order is not appealable, the aggrieved party may file an
appropriate special civil action under Rule 65 (ROC, Rule 41, Sec.
1, last par., as amended by A.M. No. 0707012-SC effective December 27,
2007),for certiorari, prohibition or mandamus.
5. Is it mandatory for the Court of Appeal to dismiss
an appeal upon motion and presence of the grounds for
dismissal ?
SUGGESTED ANSWER: No, as the grounds for dismissal
are merely discretionary and not mandatory.
The grounds for dismissal under of an appeal under Section
1 of Rule 50 of the Rules of Court are discretionary upon the Court
of Appeals. This can be seen from the very wording of the Rules
which uses the word may instead of shall. The rule provides for
specific grounds for dismissal of appeal and manifestly confers a
power and does not impose a duty. What is more, it is directory,
not mandatory.
With the exception of Section 1 (b), which is failure to file
the notice of appeal or the record on appeal within the period
prescribed by the Rules, it is not the ministerial duty of the court to
dismiss the appeal. The discretion, however, must be a sound
one to be exercised in accordance with the tenets of justice and
fair play having in mind the circumstances obtaining in each case.
(de Leon v. Court of Appeals, et al., G.R. No. 138884, June 4, 2002)
6. What is the remedy for denial of motion to
dismiss an appeal ?
SUGGESTED ANSWER: Since a denial of a motion to
dismiss an appeal is not subject to appeal, the proper remedy is to
file the appellees brief and proceed with the appeal. In case of
failure to do so, the period to file appellees brief may be deemed
waived after expiration of the period to do so. (de Leon v. Court of
Appeals, et al., G.R. No. 138884, June 4, 2002)
7. Conchita sued Beltran et al., for unlawful detainer.
The MTC rendered judgment in her favor ordering Beltran et
al., to vacate, pay reasonable rental and attorneys fees.
Beltran, et al., appealed to the RTC. The MTC judgment
was executed pending appeal because Beltran, et al. failed to
file supersedeas bond. Beltran, et al., moved the RTC to
admit additional evidences consisting of a contract to sell
between them and its Quezon City government covering the
lot in dispute, and some receipts of payment, which the RTC
granted. The RTC also conducted seven clarificatory
hearings during which the parties presented testimonial
evidences, as well as conducted an ocular inspection of the
disputed premises. Thereafter, the RTC rendered judgment
reversing the MTC decision, ruling that Conchita has no
interest to the disputed property. The RTC then dismissed
her complaint. Conchita filed a petition for certiorari with the
 120
Court of Appeals which denied the petition and restored
possession to Beltran, et al.
Was the RTC correct in reversing the MTC ? What
about the CA in restoring possession to Beltran, et al.?
Explain briefly.
SUGGESTED ANSWER: No, the RTC was in error. RTC
in the exercise of its appellate jurisdiction, cannot hear the case de
novo in the guise of clarificatory hearings during which additional
evidence is to be presented by the parties and on ocular
inspection conducted.
The Court of Appeals erred in granting private respondents
motion for execution pending appeal. For, indeed, the case was
not with said court on appeal but on a petition for certiorari. Thus,
the appellate courts jurisdiction was only to pass upon the validity
of the orders of the RTC in the conduct of clarificatory hearings
and ocular inspection. Since the RTC has yet to act on private
respondents motion for execution pending appeal, this matter
should have been left for resolution by the trial court, not by the
Court of Appeals. (Abellera v. Court of Appeals, et al., G.R. No.
127480, February 28, 2000)
APPEAL FROM QUASI-JUDICIAL AGENCIES
TO CA
1. How are appeals taken from quasi-judicial
agencies to the Court of Appeals ?
SUGGESTED ANSWER: Appeals from quasi-judicial
agencies like the Civil Service Commission, Securities and
Exchange Commission, Office of the President, Land Registration
Authority, Social Security Commission, Civil Aeronautics Board,
Bureau of Patents, Trademarks and Technology Transfer (now the
Intellectual Property Office), National Electrification Administration,
Energy Regulatory Board, National Telecommunications
Commission, Department of Agrarian Reform under Republic Act
No. 6657, GSIS, Employees Compensation Commission,
Philippine Atomic Energy Commission, Board of Investments,
Construction Industry Arbitration Commission and voluntary
arbitrators authorized by law to the Court of Appeals:
a. Appeal through verified petition for review filed with
the Court of Appeals. (Sec. 5, Rule 43, ROC)
b. Payment to clerk of court of the Court of Appeals the
docketing and other lawful fees and P500.00 deposit for costs.
(Sec. 5, Rule 43, ROC)
c. Within fifteen (15) days from notice of award,
judgment, order or date of last publication if required. (Sec. 4, Rule
43, ROC)
d. Additional time of fifteen (15) days only may be
granted after motion for extension, payment of docket and other
lawful fees and deposit for costs and further extension for the most
compelling reasons and in no case to exceed fifteen (15) days.
(Sec. 4, Rule 43, ROC)
2. May courts of justice review the findings of fact
of administrative authorities ?
SUGGESTED ANSWER: As a general rule, no.
The consequent policy and practice underlying our
Administrative Law is that courts of justice should respect the
findings of fact of said administrative agencies. (Diesel Construction
Co. v. UPSI Property Holdings, Inc., G. R. No. 154885, March 24, 2008
and companion case citing Blue Bar Coconut Philippines v. Tantuico, No.
L-47051, July 29, 1988, 163 SCRA 716, 729, citations omitted))
3. Are there any instances where courts of justice
may review the findings of fact of administrative authorities ?
SUGGESTED ANSWER: Yes,
a. where there is absolutely no evidence to support
such findings of fact or
b. such evidence is clearly, manifestly and patently
insubstantial. (Diesel Construction Co. v. UPSI Property Holdings, Inc.,
G. R. No. 154885, March 24, 2008 and companion case Blue Bar
Coconut Philippines v. Tantuico, No. L-47051, July 29, 1988, 163 SCRA
716, 729, citations omitted)
ANNULMENT OF JUDGMENTS OR FINAL
ORDERS AND RESOLUTIONS
1. What is the nature of an action for annulment of
judgments ?
SUGGESTED ANSWER: Annulment of judgment is a remedy
against a final and executory judgment.
Therefore, a necessary allegation in the complaint would be
that there was in fact a judgment that has been issued by the trial
court, which judgment has become final. (Eagle Realty Corporation
v. Republic of the Philippines, etc., et al., G.R. No. 151424, July 4, 2008)
2. What part of the pleading determines the nature
of the action ? Explain briefly.
 121
SUGGESTED ANSWER: The body of the pleading or
complaint determines the nature of an action, not its title or
heading.
This is because the complaint must contain a concise
statement of the ultimate facts constituting the plaintiffs cause of
action and specify the relief sought. [Eagle Realty Corporation v.
Republic of the Philippines, etc., et al., G.R. No. 151424, July 4, 2008
citing Heirs of Tuazon v. Court of Appeals, 465 Phil. 114, 120 (2004)]
Thus, although denominated as an Action for Annulment of
Judgment and Cancellation of Decree and Titles, the complaint is
not an action for annulment of judgment under Rule 47, but a case
for cancellation of void titles. (Eagle Realty Corporation, supra)
APPEAL TO THE SUPREME COURT
1. How is an appeal by certiorari taken to the
Supreme Court ?
SUGGESTED ANSWER: A party desiring to appeal by
certiorari from a judgment, final order or resolution of the Court of
Appeals, the Sandiganbayan, Court of Tax Appeals, the
Regional Trial Court or other courts whenever authorized by law
to the Supreme Court:
a. may file with the Supreme Court a verified petition
for review on certiorari raising only questions of law and filed with
the Supreme Court.
1) The petition may include an application for a
writ of preliminary injunction or other provisional
remedies and shall
a) raise only questions of law, which
must be distinctly set forth.
2) The petition may seek the same provisional
reliefs
a) by verified motion
b) filed in the same action or
proceeding
c) at any time during its pendency.
(ROC, Rule 45, Sec. 1, as amended by A.M. No. 07-
7-12-SC effective December 27, 2007)
b. Payment of docket fee and other lawful fees to the
clerk of court of the Supreme Court with deposit of P500.00 for
costs.
c. Within fifteen (15) days from notice of the judgment
or order appealed from, or of denial of petitioner's motion for new
trial or reconsideration filed in due time after notice of judgment.
d. Extension to file petition for a period of thirty (30)
days only may be granted for justifiable reasons, on motion duly
served and with full payment of docket and other lawful fees and
deposit for costs. (Sec. 2, Rule 45, ROC)
2. What is the scope of the review by the Supreme
Court in a petition for review on certiorari as a mode of
appeal under Rule 45 of the Rules of Court. ?
SUGGESTED ANSWER: Only those errors committed by
the Court of Appeals and not by the trial court. Absent any
whimsical or capricious exercise of judgment, and unless the lack
of any basis for the conclusions made by the lower courts be
amply demonstrated, the Supreme Court will not disturb their
findings. (Tanedo, et al., v. Court of Appeals, et al., G.R. No. 104482,
January 22, 1996)
Furthermore, only questions of law may be raised and
passed upon. (Ibid., Ong v. Yap, G. R. No. 146797, February 18, 2005)
3. What is a question of law ?
SUGGESTED ANSWER: There is a question of law in a
given case when doubt or difference arises as to what the law is
on a certain state of facts. (Begunbe v. Piedad, G.R. No. 140975,
December 8, 2000)
4. What is a question of fact ?
SUGGESTED ANSWER: There is a question of fact when
the doubt or difference arises as to the truth or falsehood of
alleged facts.
There is a question of fact when the query necessarily
invites calibration of witnesses, existence and relevance of specific
surrounding circumstances and their relation to each other and to
the whole and the probabilities of the situation. (Begunbe v.
Piedad, G.R. No. 140975, December 8, 2000)
5. May the Supreme Court review findings of fact ?
SUGGESTED ANSWER: No. the Supreme Court, not
being a trier of facts, is under no obligation to examine, winnow
and weigh anew evidence (Diesel Construction Co. v. UPSI Property
Holdings, Inc., G. R. No. 154885, March 24, 2008 and companion case)
and factual findings of lower courts or agencies whose function is
to resolve factual matters. (Ortega v. Social Security Commission,
etc., G. R. No. 176150, June 25, 2008 citing Lazaro v. Social Security
Commission, 4f79 Phil. 384; 435SCRA 472 (2004)]
 122
Moreover, finds of fact of administrative agencies and
quasi-judicial bodies, which have acquired expertise because teir
jurisdiction is confined to specific matters, are generally accorded
not only respect but finality when affirmed by the Court of Appeals.
(supra citing Reyes v. national Labor Relations Commission, G. R. No.
160233, August 8, 2007, 529 SCRA 487)
6. How must the Supreme Court treat findings of
fact of the Construction Industry Arbitration Commission
(CIAC) ?
SUGGESTED ANSWER: The Supreme Court must confer
finality to the findings of fact of the Construction Industry
Arbitration Commission (CIAC) when they are supported by
evidence.
This is so because it is constituted by law as the quasi-
judicial agency accorded with jurisdiction to resolve disputes
arising from contracts involving construction in the Philippines.
[Philippine National Construction Corporation v. Court of Appeals, 512
SCRA 684 (2007)]
7. The general rule is that factual findings of the lower
courts are final and conclusive and not subject to review by
the Supreme Court under Rule 45 of the Rules of Court. State
the exceptions to this general rule.
SUGGESTED ANSWER: The following are the exceptions:
a. When the inference made is manifestly mistaken,
absurd or impossible;
b. Where there is grave abuse of discretion;
c. When he finding is grounded entirely on speculation,
surmises or conjectures;
d. When the judgment of the Court of Appeals is based
on misapprehension of facts;
e. When the findings of fact are conflicting;
f. When the Court of Appeals, in making its findings
went beyond the issues of the case and the same is contrary to
the admissions of the appellant and the appellee;
g. When the findings of facts are conclusions without
citation of specific evidence on which they are based;
h. When the Court of Appeals manifestly overlooked
certain relevant facts not disputed by the parties and which, if
properly considered, would justify a different conclusion; and
i. When the findings of fact of the Court of Appeals are
premised on the absence of evidence and are contradicted by the
evidence on record. (Villanueva v. Court of Appeals, et al., G.R. No.
127997, August 7, 1998)
j. When the findings are contrary to the trial court;
k. When the facts set forth in the petition as well as in
the petitioners main and reply briefs are not disputed by the
respondent. (Diesel Construction Co. v. UPSI Property Holdings, Inc.,
G. R. No. 154885, March 24, 2008 and companion case citing Superlines
Transportation Company, Inc. v. Philippine National Construction
Company Company, G. R. No. 169596, March 28, 2007, 519 SCRA 432,
441; citations omitted)
EXECUTION AND SATISFACTION OF
JUDGMENT
EXECUTIONS, IN GENERAL
1. Distinguish the ministerial act of issuance of a
writ of execution distinguished from the awarding of the
execution which is a judicial act.
SUGGESTED ANSWER: The function of ordering the
execution of a judgment, being judicial, devolves upon the judge
WHILE the act of issuing a writ of execution, being ministerial, can
be performed by another person, viz., the clerk of court. (Separa,
et al., v. Maceda, etc., et al., A.M. No. P-02-1546, April 18, 2002)
2. May the validity of execution of final and
executory judgments be subject to question ? How ?
SUGGESTED ANSWER: Yes. In exceptional
circumstances, considerations of justice and equity dictate that
there be some mode available to the party aggrieved of elevating
the question to a higher court.
That mode of elevation may either be by appeal, writ of
error or certiorari, or by a special civil action of certiorari,
prohibition or mandamus. (Limpin, Jr., et al., v. Intermediate Appellate
Court, et al., 147 SCRA 522, 523)
3. What is the remedy where an executed
judgment was reversed but the funds were already garnished
? Explain briefly.
SUGGESTED ANSWER: In case the executed judgment is
reversed, the Supreme Court instead of ordering the judgment
creditor to return funds that have been improperly garnished
pursuant to an order of execution pending appeal, directed the
judgment debtor to proceed against the bond filed by the judgment
 123
creditor. (BF Corporation v. ESDA Shangri-La Hotel, etc., et al., G.R.
No. 132655, August 11, 1998)
This is supported by Rule 39, Sec. 5 of the 1997 Rules of
Civil Procedure which provides that, where the executed judgment
is reversed totally or partially, or annulled, on appeal or otherwise,
the trial court may, on motion, issue such orders of restitution or
reparation of damages as equity and justice may warrant under
the circumstances.
As garnishment is a specie of attachment, the procedure
provided in Rule 57, Section 20 of the Rules of Court for the
recovery of damages against a bond in case of irregular
attachment should be applied. This means that notice should be
given to the surety and that there should be a hearing before it is
held liable on its bond. (BF Corporation, supra )
4. What are the grounds to quash a motion for
execution ?
SUGGESTED ANSWER: A motion to quash execution is
only proper where:
a. the writ of execution varies the judgment;
b. there has been a change in the situation of the
parties making execution inequitable or unjust;
c. execution is sought to be enforced against property
exempt from execution;
d. it appears that the controversy has never been
submitted to the judgment of the court;
e. the terms of the judgment are not clear enough and
there remains room for interpretation thereof; or
f. it appears that the writ of execution has been
improvidently issued, or that it is defective in substance or is
issued against the wrong party, or that the judgment debt has
been paid or otherwise satisfied, or the writ was issued without
authority. [Sps. Gutierrez v. Sps. Valienmte, et al., G. R. No. 166802,
July 4, 2008 citing Reburiano v. Court of Appeals, 361 Phil. 294, 302
(1999); Limpin, Jr. v. Intermediate Appellate Court, G.R. No. L-70987,
January 30, 1987, 147 SCRA 516, 522-23]
5. May a motion to quash an execution be availed of
if the right to appeal is already precluded ?
SUGGESTED ANSWER: No. A motion to quash
execution is not and should not be a substitute for a lost appeal.
[Sps. Gutierrez v. Sps. Valiente, et al., G. R. No. 166802, July 4, 2008
citing Cf Conejos v. Court of Appeals, 435 Phil. 849, 855 (2002); Del Mar
v. Court of Appeals, 429 Phil. 19, 30 (2002)]
They are not procedural devises to deprive the winning
party of the fruits of the judgment in his or her favor. Courts should
frown upon any scheme to prolong litigations. A judgment which
has acquired finality becomes immutable and unalterable, hence,
may no longer be modified in any respect except only to correct
clerical errors or mistakes. Once a judgment or order becomes
final, all the issues between the parties are deemed resolved and
laid to rest. [Sps. Gutierrez, supra citing Cf Salva v. Court of Appeals,
364 Phil. 281, 294 (1999)]
It is an important fundamental principle in the judicial
system that every litigation must come to an end. Access to the
courts is guaranteed. But there must be a limit thereto. Once a
litigants rights have been adjudicated in a valid final judgment of a
competent court, he should not be granted an unbridled license to
come back for another try. The prevailing party should not be
harassed by subsequent suits. For, if endless litigations were to be
encouraged, then unscrupulous litigants will multiply in number to
the detriment of the administration of justice. [Sps. Gutierrez, supra
citing Aguilar v. Manila Banking Corporation, G.R. No.157911, September
19, 2006, 502 SCRA 354, 381; Ferinion v. Sta. Romana, 123 Phil. 191,
195 (1966)]
EXECUTION AS A MATTER OF RIGHT
1. When shall execution issue upon judgments or
final orders ?
SUGGESTED ANSWER:
a. Execution shall issue as a matter of right, on motion
upon a judgment or order that disposes of the action or proceeding
upon the expiration of the period to appeal therefrom if no appeal
has been duly perfected.
b. If the appeal has been duly perfected and finally
resolved, the execution may forthwith be applied for in the court of
origin, on motion of the judgment obligee, submitting therewith
certified true copies of the judgment or judgments or final order or
orders sought to be enforced and of the entry thereof, with notice
to the adverse party.
c. The appellate court may, on motion in the same
case, when the interest of justice, direct the court of origin to issue
the writ of execution. (Sec. 1, Rule 39, ROC arrangement and
numbering supplied)
2. When should execution issue as a matter of
right ?
 124
SUGGESTED ANSWER:
a. Execution shall issue as a matter of right, on motion
upon a judgment or order that disposes of the action or proceeding
upon the expiration of the period to appeal therefrom if no appeal
has been duly perfected. (1st par., Sec. 1, Rule 39, ROC)
b. If the appeal has been duly perfected and finally
resolved, the execution may forthwith be applied for in the court of
origin, on motion of the judgment obligee, submitting therewith
certified true copies of the judgment or judgments or final order or
orders sought to be enforced and of the entry thereof, with notice
to the adverse party. (2nd par., Ibid.)
c. Judgments in actions for injunction, receivership,
accounting and support, and such other judgments as are now or
may hereafter be declared to be immediately executory, shall be
enforceable after their rendition and shall not be stayed by an
appeal taken therefrom, unless otherwise ordered by the trial
court. (1st sentence, 1st par. Sec 4, Rule 39, ROC arrangement and
numbering supplied)
d. In forcible entry and unlawful detainer, If judgment is
rendered against the defendant, execution shall issue immediately
upon motion unless the defendant complies with the requisites for
staying execution. (Sec. 19, Rule 70, ROC)
e. In forcible entry and unlawful detainer, The judgment
of the Regional Trial Court in aid of its appellate jurisdiction
against the defendant shall be immediately executory, without
prejudice to a further appeal to the Court of Appeals or Supreme
Court that may be taken therefrom. (Sec. 21, Rule 70)
3. What interlocutory order may be enforced by
execution ?
SUGGESTED ANSWER: An order granting support
pendente lite, although interlocutory, may be enforced by
execution. (Sec. 1, Rule 61, ROC)
Sec. 4, Rule 39 of the Rules of Court clearly states that
unless ordered by the trial court, judgments in actions for support
are immediately executory and cannot be stayed by an appeal.
This is an exception to the general rule which provides that
the taking of an appeal stays the execution of the judgment and
that advance executions will only be allowed if there are urgent
reasons therefore. The aforesaid provision peremptorily calls for
immediate execution of all judgments for support and makes no
distinction between those which are the subject of an appeal and
those which are not. To consider the argument that there should
be good reasons for the advance execution of a judgment would
violate the clear and explicit language of the rule mandating
immediate execution. (Gan v. Hon. Reyes, et al., G.R. No. 145527,
May 28, 2002)
4. Distinguish final judgment FROM a judgment
that has become final and executory.
SUGGESTED ANSWER: A "final judgment" becomes final
upon the expiration of the period to appeal therefrom if no appeal
has been duly perfected (Sec. 1, Rule 39, ROC), or an appeal
therefrom having been taken, the judgment of the appellate
tribunal in turn becomes final and the records of the case are
returned to the court of origin.
The "final judgment" is then correctly categorized as a "final
and executory judgment" in respect to which, as the law explicitly
provides, Execution shall issue as a matter of right (Sec. 1, Rule 39,
ROC),. It bears stressing that only a final judgment or order, i.e. a
judgment or order that disposes of the action of proceeding can
become final and executory. (Investments, Inc. v, Court of Appeals, et
al., 147 SCRA 341)
DISCRETIONARY EXECUTION; EXECUTION
PENDING APPEAL
1. How may discretionary execution or
execution pending appeal be availed of ?
SUGGESTED ANSWER:
a. On motion of the prevailing party with notice to the
adverse party filed in the trial court while it has jurisdiction over the
case and is in possession of either the original record or the record
on appeal, as the case may be, at the time of the filing of such
motion, said court may, in its discretion, order execution of a
judgment or final order even before the expiration of the period to
appeal.
b. After the trial court has lost jurisdiction, the motion for
execution pending appeal may be filed in the appellate court.
c. Discretionary execution may only issue upon good
reasons to be stated in a special order after due hearing. [Sec. 2
(a), Rule 39, ROC arrangement and numbering supplied]
2. How may several, separate or partial judgments
be executed ?
SUGGESTED ANSWER: Several, separate or partial
judgment may be executed under the same terms and conditions
 125
as execution of a judgment or final order pending appeal. [Sec. 2
(b), Rule 3, ROC]
3. When may a motion for execution pending appeal
of discretionary execution be filed ?
SUGGESTED ANSWER:
a. While the trial court has jurisdiction over the case and
is in possession of either the original record or the record on
appeal, as the case may be, at the time of the filing of such
motion, said court may, in its discretion, order execution of a
judgment or final order even before the expiration of the period to
appeal.
b. After the trial court has lost jurisdiction, the motion for
execution pending appeal may be filed in the appellate court. [1st
and 2nd pars., Sec. 2 (a), Rule 39, ROC arrangement and numbering
supplied]
4. Does the Court of Appeals have the authority to
issue immediate execution pending appeal of its own
decision ?
SUGGESTED ANSWER: No. Court of Appeals has no
authority to issue immediate execution pending appeal of its own
decision.
Discretionary execution under Rule 39, Section 2 (a), of the
Rules of Court applies to a judgment or final order of the trial court,
upon good reasons to be stated in a special order after hearing.
(Heirs of the late Justice Reyes v. Justice Demetria, et al., A.M. No. CA-
01-32, January 23, 2002)
5. What are the grounds for issuing execution
pending appeal or discretionary execution ?
SUGGESTED ANSWER: Discretionary execution may only
issue upon good reasons to be stated in a special order after due
hearing. (last par., Sec. 2 (a), Rule 39, ROC]
Some of the good reasons for execution pending appeal
are:
a. Where the judgment is for the necessary support of
an heir (People's Bank v. San Jose, 96 Phil. 895);
b. Where the education of the person to be supported
would be unduly delayed if financial assistance is to be rendered
only after termination of the appeal (Javier v. Lucero, 94 Phil. 634);
c. When the appeal is being taken for the purpose of
delay (Presbiterio v. Rodas, 73 Phil. 300);
d. When there is danger of the judgment becoming
ineffectual because the judgment debtor, a foreign corporation, is
withdrawing its business from the country (Scottish Union etc., v.
Macadaeg, et al., 91 Phil. 891); and
e. When advance execution of an order authorizing the
removal of a regular administrator is necessary to protect the
estate from mismanagement. (Cotia v. Pecson, 93 Phil. 881)
6. What are some grounds that could NOT JUSTIFY
issuance of execution pending appeal ?
SUGGESTED ANSWER:
a. Actual and immediate danger of insolvency. (BF
Corporation v. EDSA Shangri-La Hotel, etc., et al., G.R. No. 132655,
August 11, 1998)
Even the danger of extinction of the prevailing corporation
will not per se justify a discretionary execution unless there are
showings of other good reasons, such as for instance, impending
insolvency of the adverse party or the appeal being patently
dilatory. But even so, it is not for the trial judge to determine the
merit of a decision he rendered as this is the role of the appellate
court. Hence it is not within the competence of the trial court, in
resolving a motion for execution pending appeal, to rule that the
appeal is patently dilatory and rely on the same as its basis for
finding good reasons to grant the motion. Only an appellate court
can appreciate the dilatory intent of an appeal as an additional
good reason in upholding an order for execution pending appeal.
(BF Corporation, supra)
b. Posting of a bond to answer for damages is not alone
a sufficient reason for ordering execution pending appeal. (BF
Corporation, supra) To do so would make execution pending appeal
routinary, the rule rather than the exception. (Banez v. Banez, G.R.
No. 132592 and 133628, January 23, 2002)
The filing of a bond does not constitute a good reason to
justify execution pending appeal. (Ramas, et al., v. Commission on
Elections, et al., G.R. No. 130831, February 10, 1998) Nevertheless,
the trial court may require the filing of a bond as a condition for the
issuance of a corresponding writ of execution to answer for the
payment of damages which the aggrieved party may suffer by
reason of the execution pending appeal. (Ramas, et al., supra)
7. What is the remedy if execution pending appeal is
improper ?
SUGGESTED ANSWER: Certiorari is the proper remedy
where the grant of execution pending appeal is not founded upon
good reasons. Appeal is not a speedy and adequate remedy that
can relieve the losing party from the immediate effects of an
 126
improvident execution pending appeal. (BF Corporation v. ESDA
Shangri-La Hotel, etc., et al., G.R. No. 132655, August 11, 1998)
8. How may discretionary execution be stayed ?
SUGGESTED ANSWER: Discretionary execution issued
a. may be stayed upon approval by the proper court
b. of a sufficient supersedeas bond
c. filed by the party against whom it is directed,
1) conditioned upon the performance of the
judgment or order allowed to be executed
2) in case it shall be finally sustained in whole or in
part.
d. The bond thus given may be proceeded against on
motion with notice to the surety. (Sec. 3, Rule 39, ROC arrangement
and numbering supplied)
7. What should be done to stay the execution in
unlawful detainer or forcible entry cases during the pendency
of an appeal before the Regional Trial Court ?
SUGGESTED ANSWER: An appeal is perfected and the
defendant to stay execution files a sufficient supersedeas bond,
approved by the Municipal Trial Court and executed on favor of
the plaintiff to pay the rents, damages, and costs accruing down to
the time of the judgment appealed from. (Sec. 19, Rule 71, ROC)
PROCEDURE FOR EXECUTION AND
SATISFACTION OF JUDGMENT
1. When may a judgment be executed by mere
motion ?
SUGGESTED ANSWER: A final and executory judgment
or order may be executed on motion within five (5) years from the
date of its entry. (1st sentence, Sec. 6, Rule 39, ROC)
2. What is the concept of a dormant judgment ?
SUGGESTED ANSWER: A dormant judgment is one which
has not been enforced by action within five (5) years after its entry
and is, therefore, reduced to a mere right of action in favor of the
judgment-creditor. It may be enforced by action. (Salvante v. Ubi
Cruz, 88 Phil. 236)
3. What are the exceptions to the dormant
judgment rule or instances where execution may be had on
mere motion despite the lapse of the five year period ?
SUGGESTED ANSWER:
a. Judgment for support which does not become dormant,
nor does it prescribe, except as to installments not collected during
the period fixed by the statute of limitations, and it is enforceable
by motion at any time. (Florendo v. Organo, 90 Phil. 483)
Furthermore, since the obligation is a continuing one, the
court never loses jurisdiction to enforce the same. (Canonizado v.
Benitez, et al., 127 SCRA 616)
b. Upon meritorious grounds or upon equity. Thus, if the
delays were through no fault of the prevailing party, the delays
should not be included in computing the five (5) year period.
(Camacho v. Court of Appeals, et al., G.R. No. 118339, March 19, 1998)
The exceptions have one common denominator, and that is
the delay is caused or occasioned by actions of the judgment
debtor and/or is incurred for his benefit or advantage. (Ibid)
4. When may a judgment be executed by action ?
SUGGESTED ANSWER: After the lapse of five (5) years
from date of its entry, and before it is barred by the statute of
limitations, a judgment may be enforced by action. (2nd sentence,
Sec. 6, Rule 39, ROC)
This is also known as an action for revival of judgment.
5. What is an action for revival of judgment ? Explain
briefly.
SUGGESTED ANSWER: An action for revival of judgment
is no more than a procedural means of securing the execution of a
previous judgment which has become dormant after the passage
of five years without it being executed upon motion of the
prevailing party. It is not intended to re-open any issue affecting
the merits of the judgment debtors case nor the propriety or
correctness of the first judgment. [Saligumba, et al., v. Palanog, G. R.
No. 143365, December 4, 2008 citing Panotes v. City Townhouse
Development Corporation, G. R. No. 154739, 23 January 2007, 512
SCRA 269; Filipinas Investment and Finance Corporation v. Intermediate
Appellate Court, G. R. Nos. 66059-60, 4 December 1989, 179 SCRA 728;
Azotes v. Blanco, 85 Phil. 90 (1949)]
6. What is the nature of an action for enforcement
of a dormant judgment, also known as an action for revival of
judgment ?
 127
SUGGESTED ANSWER: The action for enforcement of a
dormant judgment is an ordinary civil action, the object of which is
two-fold, namely:
a. To revive the dormant judgment; and
b. To execute the judgment reviving it, if it grants the
plaintiff any relief. Hence, the rights of the judgment-creditor
depend upon the second judgment.
Being an ordinary civil action, it is subject to all defenses,
objections and counterclaims which the judgment-debtor may
have except that no inquiry can be made as to the merits of the
first judgment. Therefore, defenses that do not go to the merits of
the first judgment, such as lack of jurisdiction, collusion, fraud,
prescription, or satisfaction of the judgment, may be set-up by the
judgment-debtor. (Salvante v. Ubi Cruz, 88 Phil. 236)
The revived judgment may also be enforced by motion
within five (5) years from the date of its entry and thereafter by
action before it is barred by the statute of limitations. (last
sentence, Sec. 6, Rule 39, ROC)
The action for revival of judgment is premised on the
assumption that the decision to be revived either by motion or by
independent judgment, is already final and executory. An action
for revival of judgment is a new and independent action, different
and distinct from either the recovery of property case or the
reconstitution case, wherein the cause of action is the decision
itself and not the merits of the action upon which the judgment
sought to be enforced is rendered. (Juco v. Heirs of Tomas Suy
Chungfu, etc., et al., G. R. No. 150233, February 16, 2005)
Alternative statement of nature of an action for
enforcement of a dormant judgment, also known as an action
for revival of judgment. An action for revival of judgment is a
new and independent action, different and distinct from either the
recovery of property case or the reconstitution case, wherein the
cause of action is the decision itself and not the merits of the
action upon which the judgment sought to be enforced is
rendered. [Saligumba, et al., v. Palanog, G. R. No. 143365, December 4,
2008 citing Juco v. Heirs of Toma Siy Chung Fu, G.R. No. 150233, 16
February 2005, 451 SCRA 464; Santana-Cruz v. Court of Appeals, 414
Phil. 47 (2001)]
Revival of judgment is premised on the assumption that the
decision to be revived, either by motion or by independent action,
is already final and executory. (Saligumba, et al., v. Palanog,
supra citing Baares II v. Balising, 384 Phil. 567 (2000)]
7. Tomas and Leoncio filed an action for recovery of
property with damages against Esperanza. On February 3,
1976 the court rendered a decision in favor of the plaintiffs.
The defendant filed a motion for reconsideration which was
denied. A notice of appeal was then filed by the defendant,
paying the appropriate cash bond and the record on appeal.
During the hearing of a motion for reconsideration of a
declaration of contempt for assailing the denial of the record
on appeal, the records of the case were burned.
During the pendency of the motion for reconstitution of
the records, the parties died and substituted by their heirs.
For the repeated failure of the heirs of Tomas to appear, Rita
the sole surviving heir of Esperanza filed a motion to dismiss
the reconstitution case which was granted by the lower court
on 19 January 1989. Despite the finality of the order
dismissing the petition for reconstitution, the heirs of Tomas
filed a complaint for revival of judgment which was granted
by the lower court on 02 June 1999 and affirmed by the Court
of Appeals. The revival was premised on the finding that Rita
was guilt of laches and her failure to take action implies lack
of interest and to enforce her right over the case.
She now assails the adverse judgment to the Supreme
Court. How would you rule on the issue that Rita was guilty
of laches and thus it was proper to revive the judgment in
favor of the plaintiffs ? Reason out your answer.
SUGGESTED ANSWER: Rita was not guilty of laches and
the judgment in favor of the plaintiffs may not be revived.
The motion for reconsideration that was pending at the time
the records were burned had the effect of suspending the
judgment, in connection with which said motion was filed,
becomes final. An action for revival of judgment is premised on the
assumption that the judgment to be revived is already final and
executory. It is not so in this case.
There was no laches on Ritas part because the failure to
resolve the motion for reconsideration was not due to her
negligence or abandonment but brought upon by the dismissal of
the reconstitution. Rather it was due to the fault of the heirs of
Tomas that the records were never reconstituted because of their
failure to prosecute their petition for reconstitution. (Juco v. Heirs of
Tomas Suy Chungfu, etc., et al., G. R. No. 150233, February 16, 2005)
8. May a motion be filed to lift a levy of attachment
to implement a judgment that has attained a state of finality ?
SUGGESTED ANSWER: No. The prevailing partys
right to the levied properties is founded on its right, as a prevailing
party, to enjoy the finality of the decision by execution and
 128
satisfaction of the judgment. It is almost trite to say that execution may be sold for the satisfaction of the judgment obligation, and the
is the fruit and end of the suit. Hailing it as the life of the law, officer making the sale shall account to the corresponding
ratio legis est anima, The reason of the law is its soul. (Solar executor or administrator for any surplus in his hands. (Sec. 7,
Resources, Inc. v. Inland Trailways, Inc., G.R. No., 173566, July 4, 2008) Rule 39, ROC)
The Supreme Court has zealously guarded against any
attempt to thwart the rigid rule and deny the prevailing litigant his EXECUTION OF JUDGMENTS FOR MONEY
right to savour the fruit of his victory. A judgment, if left
unexecuted, would be nothing but an empty triumph for the
1. How is execution of judgments for money
prevailing party. (Solar Resources, Inc. supra citing Florentino v. Rivera,
enforced ?
G.R. No. 167968, 23 January 2006, 479 SCRA 522, 532.)
The losing partys contention that it was merely exercising SUGGESTED ANSWER:
its legal right to choose which among its properties it wanted to be a. Immediate payment on demand; or
levied, in accordance with Section 9(b), Rule 39 of the Revised b. Satisfaction by levy; or
Rules of Court, and, therefore, cannot be intruded upon by anyone c. Garnishment of debts and credits. (Sec. 9, Rule 39,
ROC)
cannot be given credence.
The option under Section 9(b), Rule 39 of the Revised
Rules of Court is granted to a judgment obligor before the sheriff EXECUTION OF JUDGMENTS FOR SPECIFIC
levies its properties and not after. Hence, the judgment obligor ACTS
should communicate to the sheriff its choices before the sheriff
implements the levy. The judgment obligors failure to seasonably 1. How are judgments for specific acts executed ?
exercise such option, either by deliberate inaction or mere SUGGESTED ANSWER:
oversight, cannot be countenanced by this Court. To allow the a.. Conveyance, delivery of deeds, or other specific acts
judgment obligor to substitute the levied properties according to its vesting title;
whims dissipates court officers precious time and effort and b. Sale of real or personal property;
thereby unduly delays the execution of the judgment to the c. Delivery or restitution of real property;
damage and prejudice of the prevailing party. Technicalities d. Removal of improvements on property subject of
cannot be invoked to defeat the execution of a judgment, which as execution;
we held, is the fruit and end of the suit and is the life of the law. e. Delivery of personal property. (Sec. 10, Rule 39, ROC)
(Solar Resources, Inc., supra)

EXECUTION IN CASE OF DEATH OF PARTY EXECUTION OF SPECIAL JUDGMENTS

1. How are special judgments executed ?

1. How is execution effected in case of the death of a
SUGGESTED ANSWER: A certified copy of the judgment
party ?
shall be attached to the writ of execution and shall be served by
SUGGESTED ANSWER:
the officer upon the party against whom the same is entered, or
a. In case of the death of the judgment obligee, upon
upon any other person required thereby, or by law, to obey the
the application of his executor or administrator, or successor in
same, and such party or person may be punished for contempt if
interest;
he disobeys such judgment. (Sec. 11, Rule 39, ROC)
b. In case of the death of the judgment obligor, against
his executor or administrator or successor in interest, if the
judgment be for the recovery of real or personal property, or the PROCEEDINGS WHERE PROPERTY CLAIMED
enforcement of a lien thereon; BY THIRD PERSON
c. In case of the death of the judgment obligor, after
execution is actually levied upon any of his property, the same
 129
1. What proceedings are to be undertaken where
the property is claimed by a third person ?
SUGGESTED ANSWER: If the property levied on is
claimed by any person other than the judgment obligor or his
agent, and such person
a. makes an affidavit of his title thereto or right to the
possession thereof,
b. stating the grounds of such right or title, and
c. serves the same upon the officer making the levy and
a copy thereof upon the judgment obligee,
d. the officer shall not be bound to keep the property,
e. unless such judgment obligee,
1) on demand of the officer
2) files a bond approved by the court
3) to indemnify the third-party claimant in a sum
not less than the value of the property levied on.
4) In case of disagreement as to such value, the
same shall be determined by the court issuing the writ of
execution.
f. No claim for damages for the taking or keeping of the
property may be enforced against the bond unless the action
therefor is filed within one hundred twenty (120) days from the
date of the filing of the bond.
The officer shall not be liable for damages for the taking or
keeping of the property , to any third-party claimant if such bond is
filed. Nothing herein contained shall prevent such claimant or any
third person from vindicating his claim to the property in a separate
action, or prevent the judgment obligee from claiming damages in
the same or a separate action against a third-party claimant who
filed a frivolous or plainly spurious claim. (1st and 2nd pars., Sec. 16,
Rule 39, ROC, numbering and arrangement supplied)
REDEMPTION OF PROPERTY SOLD ON
EXECUTION
1. What is meant by the right of redemption ?
SUGGESTED ANSWER: The right of a judgment debtor or
redemptioner to buy back from the purchaser of the proper sold at
public auction by virtue of a writ of execution at anytime within the
reglementary period.
2. Who may redeem ?
SUGGESTED ANSWER: Redemption may be made in by
the following persons:
a. The judgment obligor, or his successor in interest in
the whole or any part of the property;
b. A creditor having a lien by virtue of an attachment,
judgment or mortgage on the property sold, or on some part
thereof, subsequent to the lien under which the property was sold.
Such redeeming creditor is termed as a redemptioner.
REMEDIES OF JUDGMENT CREDITOR IN AID OF
EXECUTION
1. What remedies may be availed of by a judgment
creditor in aid of execution ?
SUGGESTED ANSWER:
a. If execution is returned unsatisfied, he may cause
examination of the judgment-debtor as o his property and income
(Sec. 36, Rule 39, ROC);
b. He may cause examination of the debtor of the
judgment-debtor as to any debt owed by him to the judgment-
debtor or as to any other property of the judgment-debtor in his
possession (Sec. 37, Ibid.);
c. If after examination the court finds that there is
property of the judgment-debtor either in his own hands or in that
of any other person, the court may order the property applied to
the satisfaction of the judgment (Sec. 40, Ibid.);
d. If the court finds that the earnings of the judgment-
debtor are more than sufficient for his family's needs, it may order
payment of the judgment in installments (Ibid.);
e. The court may appoint a receiver for property of the
judgment-debtor not exempt from execution, or forbid a transfer or
other disposition of or interference with such property (Sec. 41, Rule
39, ROC);
f. If the court finds that the judgment-debtor has an
ascertainable interest in real property either as mortgagor,
mortgagee, or otherwise, and his interest can be ascertained
without controversy, the court may order the sale of such interest
(Sec. 42, Ibid.);
g. If the person alleged to have property of the
judgment-debtor or to be indebted to him claims an adverse
interest in the property, or denies the debt, the court may authorize
the judgment-creditor to institute action to recover the property,
forbid transfer of the property until the action can be commenced
 130
and prosecuted to judgment, and may punish disobedience of
such order as contempt (Sec. 43, Ibid.).
No judgment obligor shall be required to appear before a
court or commissioner outside of the province or city in which such
obligor resides or is found. (Sec. 36, Rule 39, ROC)

SATISFACTION OF JUDGMENT

1. How shall the writ of execution be returned ?

SUGGESTED ANSWER:
a. If the writ is satisfied. The writ of execution shall be
returnable to the court issuing it immediately after the judgment
has been satisfied in part or in full.
b. If the writ is not satisfied. If the judgment cannot be
satisfied in full within thirty (30) days after issuance of the writ, the
officer shall report to the court and state the reason therefore.
(Sec. 14, Rule 39, ROC)

2. What is the procedure where the writ of execution

is returned unsatisfied. ?
SUGGESTED ANSWER: Such writ shall continue in effect
during the period within which the judgment may be enforced by
motion.
The officer shall make a report to the court every thirty (30)
days on the proceedings taken thereon until the judgment is
satisfied in full, or its effectivity expires.
The returns or periodic reports shall set forth the whole of
the proceedings taken and shall be filed with the court and copies
thereof promptly furnished the parties. (Sec. 14, Rule 39, ROC,
arrangement supplied)

3. What is the lifespan of a writ of execution?

SUGGESTED ANSWER: The lifespan of a writ of
execution is the period within which it may be enforced by mere
motion (within five years from date of entry of judgment). There is
no more need to ask for an alias writ of execution under the new
Rules. (Knecht v. United Cigarette Corp., et al., G.R. No. 139370, July 4,
2002)

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