II.

JURISDICTION

Introductory/General Concepts

Q. Up to what stage of a civil action may the issue of jurisdiction be
raised? (5%) [1997 Midterms IIIa]

A. In case of jurisdiction over the subject matter, the question may be invoked
at any stage of the proceedings (even on appeal), but the issue of jurisdiction
over the person of the defendant must be raised either in the motion to
dismiss or by way of an affirmative defense in the answer. (Amigo v CA, 253
SCRA 382).


Q: P sues D in RTC-Manila to recover P100,000.00 and a parcel of land
located in Manila. P is a Manila resident while D is a resident of Quezon
City. D moves to dismiss on the ground of lack of jurisdiction. What
ruling? (5%)

A: Motion denied. The claim for P100,000.00 may be properly joined with the
claim for recovery of real property, and RTC has jurisdiction over such money
claim since it has jurisdiction over the claim for recovery of real property.
(Rule 2, Sec. 5[c])

Q: Suppose you are the counsel for D who is sued in the MTC for
unlawful detainer and on a P50,000.00 promissory note (not related to
the lease subject of the action), what would be your proper and effective
procedural recourse? (5%)

A: I will move for severance of one cause of action because of misjoinder of
the two causes of action, one - to wit, the unlawful detainer action - being a
special civil action. (Rule 2, Secs. 5 [b] and 6)

Q: Last February 1990, T died in Quezon City, his place of residence,
leaving a will. May the RTC of Bulacan take cognizance of the petition
for the probate of his will even if he left no property in Bulacan? (5%)

A: Yes, deceased's residence or location of his estate is not an element of
jurisdiction of the probate court but is merely one of venue. So, RTC-Bulacan
may take cognizance of the petition for probate if there is no objection to the
venue.



Jurisdiction (subject matter) of the different levels of courts in civil
cases

Q. P, a Manila resident, filed a collection action against C and D in RTC
Manila, alleging a total claim of P230,000 (P180.,000 for principal and
P50,000 for attorney's fees) against C based on a promissory note and a
claim of P100,000 against D based on the unpaid purchase price of
goods delivered. Both C and D moved to dismiss for lack of
jurisdiction. Rule on both motions to dismiss. (1996 Midterm Exam VII)

A. Both motions to dismiss granted. Jurisdiction pertains to the MTC because
the total amount (exclusive of attorney's fees) of each cause of action is
below the jurisdictional minimum of P200,000 for RTC jurisdiction. Joinder of
the 2 causes of action against C and D is improper because there is a
misjoinder of parties, the two pleaded causes of action not arising out of the
same transaction or series of transaction and there being no question of law
or fact common to C and D, and joinder of causes of action is subject to the
rule on joinder of parties. (See Flores v. Mallare-Phillipps, 144 SCRA 377
[2nd. Div., 1988])

Q. A, a Manila resident, bought a color TV set at the price of P15,000.00
on 24 monthly installments from B Co., a Manila-based appliance
company. The transaction was covered by a conditional sale contract.
A defaulted in his monthly installment payments after having paid 5
such installments. In what court may B Co. bring the action to recover
the TV set? (1993 Midterm Exam VIb)

A. No answer

Q. P corporation filed an action against D in the RTC to collect certain
amounts of money amounting to P 2 million on its claim that D, while
president of P corporation and by using his position as such president
and through fraud and misrepresentation, misappropriated and diverted
to his personal use these corporate funds. D moved to dismiss the
complaint on the ground that it falls within the jurisdiction of the
Securities and Exchange Commission (SEC). Rule on the motion to
dismiss. (5%) [1995 Finals VIIIa]

A. Motion to dismiss granted. The complaint alleges acts committed by a
corporate officer against the corporation, which amounts to fraud and
misrepresentation and thus detrimental to the interest of the public.
Therefore, what was otherwise an ordinary action for a sum of money has
been converted to an inter-corporate controversy which calls for the
adjudicative powers of the SEC under Sec 5 (a) of PD 902-A. (Alleje v CA,
240 SCRA 495).

*** note amendment to PD 902-A in the Securities Regulation Code of 2000
transferring adjudicative powers of the SEC over certain cases to the regular
courts.

Q. P, a senior Vice-President of a corporation, was dismissed for
lack of confidence. Aggrieved, P sued the company for illegal dismissal
with prayer for back wages, reinstatement, damages and other benefits
before the Labor Arbiter. The company moved to dismiss on the
ground that the Labor Arbiter has no jurisdiction on the over the action.
Rule on the motion. (5%) [1997 Midterms VIa]

A. Motion granted. Jurisdiction properly pertains to the Securities and
Exchange Commission because the dismissal of a corporate officer is a
corporate act and/or an intra-corporate controversy. (Estrada v NLRC, GR
No. 106722, 04 October 1996)


*** note amendment to PD 902-A in the Securities Regulation Code of 2000
transferring adjudicative powers of the SEC over certain cases to the regular
courts.


Q. What is the legal effect of the non-payment of the docket fees in full?
(5%)

A. The court does not acquire jurisdiction over the subject matter in the
case. Therefore, the entire proceeding undertaken in the case are null and
void. [Hodges v. CA185 SCRA 281 (1990)]

Q: P sues D in RTC-Manila to recover P100,000.00 and a parcel of land
located in Manila. P is a Manila resident while D is a resident of Quezon
City. D moves to dismiss on the ground of lack of jurisdiction. What
ruling? (5%)

A: Motion denied. The claim for P100,000.00 may be properly joined with the
claim for recovery of real property, and RTC has jurisdiction over such money
claim since it has jurisdiction over the claim for recovery of real property.
(Rule 2, Sec. 5[c])


Q. Action by P against D in the RTC for a sum of money was
sought to be dismissed by D on the ground of prescription. The motion
to dismiss was denied and D brought a special civil action for certiorari
in the CA against the order of denial of his motion to dismiss. The CA
dismissed the petition. Then, D filed his answer, after which trial was
held and judgment rendered against D. On appeal from this judgment
to the CA, D filed a motion to dismiss the complaint on the ground of
lack of jurisdiction, alleging htat P had not paid the appropriate
docketing fees in the trial court. Rule on the motion to dismiss.

A. Motion to dismiss denied. Although the payment of the proper docket
fees is a jurisdictional requirement, the TC may allow the plaintiff in an action
to pay these fees within a reasonable time before the expiry of the applicable
prescriptive or reglementary period. But if the plaintiff fails to comply with this
requirement, defendant should timely rise the issue of jurisdiction or else he
would be considered in estoppel. Here, D filed an answer and participated in
the proceedings before the TC. It was only after judgment was rendered
against him that he raised the issue of jurisdiction. While the lack of
jurisdiction ... may be raised at any stage of an action, the party raising such
question may be estopped if he has actively taken part in the very
proceedings which he questions and he only objects to the court's jurisdiction
because the judgment or decision subsequently rendered is adverse to him.
(National Steel Corp. v CA)




























III. VENUE

Q: Last February 1990, T died in Quezon City, his place of residence,
leaving a will. May the RTC of Bulacan take cognizance of the petition
for the probate of his will even if he left no property in Bulacan? (5%)

A: Yes, deceased's residence or location of his estate is not an element of
jurisdiction of the probate court but is merely one of venue. So, RTC-Bulacan
may take cognizance of the petition for probate if there is no objection to the
venue.


IV. PARTIES

Party in Interest

Q. A, owner of an improved city lot, leased the same to B. While B
is in possession, he was dispossessed by C. B, therefore, filed an
action against C to recover possession. C contested upon the ground
that B, not being the owner of the land, is not the real party in interest.
Is C's contention correct? (5%)

A. If the action filed is for forcible entry wherein the issue is only
possession de facto, B, as the lessee, has a right of action against C to
recover the same. B is a party in interest in the sense that he has a present
substantial interest in the land, the possession of which he had been
deprived.


Capacity to sue and be sued

Q. X Company, a corporation incorporated under the laws of Michigan,
USA, entered into a "representative agreement" with Y Company, a
domestic corporation, for the sale in the Philippines of X Company's
electronics products in consideration for a stipulated commission.
After the agreement was in force for a year, X Company terminated it
and then brought an action in the RTC-Makati to enjoin Y Company from
dealing in similar products as those of X's. Y Company moved to
dismiss the action on the ground that X Company, being a foreign
corporation not licensed to do business in the Philippines, has no
capacity to sue. Rule on the motion to dismiss. (10%) [1997 Midterms I]

A. X Company may well be said to be doing business in the Philippines
because of the extensiveness and regularity of the sales of its products in this
country whereby it made Y Company its mere agent in pursuit of its business.
However, Y Company is estopped to challenge the personality of X after it
has acknowledged the same by entering into a contract with it. This result is
dictated by fair play. A person contracting with a foreign corporation cannot
take advantage of the latter's non-compliance with the licensing requirement
where such person has received the benefits of the contract.
(Communication Materials and Design Inc v CA, GR 102223, 22 August
1996)

Joinder of parties

Q. D purchased a car from P, a car dealer, on installments and secured
the purchase price balance (covered by a promissory note) with a
chattel mortgage on the car. While the purchase price was not yet fully
paid and the mortgage on the car still existing, D sold the car to E. With
D having defaulted on the payments, P, seeking to foreclose the chattel
mortgage, sued out a writ of replevin against D and E, but since D could
no longer be served with summons, P moved to drop D as defendant.
Rule on P's motion to drop D. (10%) [1996 Midterms III]

A. The motion to drop D as defendant cannot be granted without dismissing
the complaint because D is an indispensable party. The replevin suit is
anchored on P's alleged right to possess the car and which right in turn is
founded on the alleged default of D. If the case against D is dismissed, there
would be no remaining cause of action against E. P's right to possess the car
is conditioned on D's actual default and this default cannot be established in
D's absence. (Servicewide Specialists Inc. v CA, GR No. 103301, 08
December 1995.)


Substitution of parties

Q. Plaintiff filed a petition for mandamus to compel the then municipal
mayor to issue to him the municipal license and permit to resume
operations of his cockpit. Pending the action, the mayor was dismissed
from office. After trial, the court issued the writ of mandamus and
adjudged defendant mayor liable for damages. In due course, the
sheriff levied execution of the judgment for damages on defendant
mayor's properties. Is the levy valid? (10%) [1997 Midterms IV]

A. The levy is void because the judgment is void and without any legal effect.
The judgment is void because there was no substitution, pursuant to Rule 18,
Section 3, of defendant mayor and the filing of a supplemental pleading
showing that defendant mayor's successor had adopted or continued the
defendant mayor's policy to deny the cockpit license. (Galvez v CA, GR
119193, 29 March 1996.)


New/additional parties: impleader

Q. What is the effective recourse of the defendant where the plaintiff did
not implead an indispensable party? (1993 Midterm Exam IIb)

A. Defendant should move for an order directing the plaintiff to amend its
complaint by impleading the indispensable party. Upon plaintiff's failure or
refusal to obey this order, the action should be dismissed. (Rule 17, Sec. 3;
National Development Co. v. Court of Appeals, 211 SCRA 422 [1992]).

Q. Action by P against D in the RTC for a sum of money wherein D
impleaded X as a third-party defendant on the claim that X is liable to
plaintiff by way of subrogation to D's liability. Judgment was rendered
ordering D to pay P and X to indemnify D for this payment. X timely
appealed the judgment to the CA, but did not appeal and so P sued out
a writ of execution against him after the lapse of the 15-day period for D
to appeal. Is the writ of execution valid? (5%) [1999 Midterm X]

A. Yes. The third-party complaint is independent of and distinct from the
complaint, but is allowed in the original and principal case to avoid circuitry of
action and unnecessary proliferation of lawsuits and to dispose expeditiously
in one litigation the entire subject matter arising from one particular set of
facts. An appeal by any party from such judgment does not inure to the
benefit of the other party who has not appealed nor can it be deemed to be
an appeal of such other party from the judgment against him. (Firestone Tire
& Rubber Co. of the Phils. vs. Tempongko, 27SCRA 418 [1969])


New/additional parties: intervention

Q. P sues your client D, to recover possession of a parcel of land. D
tells you that his wife acquired this parcel of land from its former owner,
X. Is there a way by which D may cause X to be impleaded? (1996
Midterm Exam Ia)

A. Yes. D should have his wife intervene in the case and once admitted as
intervenor, the wife should move to be allowed to a file a third-party complaint
against X. D himself cannot file this third-party complaint against X because
he has no privity with X. (Morada v. Caluag, 5 SCRA 1128 [1962])

Q P sued A, B, C and D to recover from each of them different
pieces of jewelry which were allegedly delivered to each of them as a
commission agent of the plaintiff. The jewelries were delivered on
different dates. If you were counsel for all the defendants, what would
be your proper recourse?

A. I would ask that all but one defendant be dropped from the complaint
because the defendants are mis-joined. The plaintiff's claim against each of
the defendants did not arise from the same transaction or series of
transactions. (Rule 3, sec 6). Each claim therefore is a separate cause of
action. (Gacula v Martinez, 88 Phil 142)


Q. What is defendant's recourse against a complaint which fails to
include an indispensable party?

A. He should move for an order directing the plaintiff to amend his
complaint to include the indispensable party, and if plaintiff fails or refuses to
obey this order, or the indispensable party cannot be sued, then defendant
should move to dismiss the complaint under Rule 17, sec 3. (See Corez v
Avila, 101 Phgil 205 [1957])






























V. SUMMONS

Q: Action in RTC- Manila against d to collect a sum of money. D is a
Filipino now permanently residing in the United States but comes to the
Philippines during the Christmas holidays. How may the summons in
this action be served on him? (5%)

A: Only personally, when he is in the Philippines even temporarily only.
Extraterritorial service is not permissible since the action is inpersonam (Rule
14, 15) and D is not a Philippine Resident (Id. Sec. 16)


Q: Action in RTC- Manila against d to collect a sum of money. D is a
Filipino now permanently residing in the United States but comes to the
Philippines during the Christmas holidays. How may the summons in
this action be served on him? (5%)

A: Only personally, when he is in the Philippines even temporarily only.
Extraterritorial service is not permissible since the action is inpersonam (Rule
14, 15) and D is not a Philippine Resident (Id. Sec. 16)


Service of summons

Q. D borrowed US $10,000 from the Guam Branch of a Philippine bank
and executed therefore in Agana, Guam a promissory note. Upon D's
default on the note, may the Philippine bank sue him in then Philippines
to collect on this note? (1996 Midterm Exam IVb)

A. Yes. D's suability before our courts depends on the latter's ability to
acquire jurisdiction over his person or his property. In this case, the bank
may file a simple collection case before a Philippine court and have the
summons served on D should he be found in the Philippines; but here the
filing of the suit should be timed to coincide with the time that D is expected in
this country, also the complaint may be dismissed for non-prosecutions if the
summons is not served seasonably enough. But the better alternative would
be to have the plaintiff file an application for preliminary attachment on the
real property of D in the Philippines, because in such case, D's non-residence
will be a sufficient and independent ground for the issuance of an attachment
(Rule 57, Sec. 1[f]) and the court may then acquire jurisdiction over his
person by service of summons by publication (Rule 14, Sec. 17).




VI. PLEADINGS


Q. An action on a promissory note by P against D Company, copy
of the note being attached to the complaint as an annex. D Company
answered by denying liability and alleging that the person who signed
the note had no authority to do so, but this answer was not verified.
May D Company prove its defense? (5%)

A. No. By failing to make a verified denial of the genuineness and due
execution of the note, D Company had admitted that the party whose
signature appears thereon had indeed signed the note and that he had
authority to sign it. [Imperial Textile Mills Inc. v. CA; 183 SCRA 584 (1990)]

Q. May the trial court extend the period for filing an answer after this
period had already expired? (5%)

A. Yes, indirectly. See R11S7(2), now R11S11.

Q: Suppose that a complaint is dismissed for failure to attach thereto a
sworn certification against forum-shopping, can the omission be cured
by an amendment of the complaint? (5%)

A: No. (rule 7, Sec. 5, 2nd par.)

Q: When is a cross-claim permissive? (5%)

A: Perhaps never. (See Rule 6, sec. 8; Rule 9, Sec. 2)

Q: P sues D for P300,000.00 in RTC-Manila. Before D could answer, P
amends his complaint to allege an alternative cause of action for
specific performance. D moves to dismiss the complaint. Ruling?
(10%)

A: Motion granted. P can amend the complaint once as a matter of right at
any time before answer. The fact that the original complaint did not plead a
cause of action within the RTC's jurisdiction is of no moment. While the
amendment has the effect of curing this defect, this is okay because no leave
of court is sought so that there is no conceptual contradiction as no
affirmative action is sought from the court. But while an action for specific
performance is within the RTC's jurisdiction since it is not capable of
pecuniary estimation, the alternative cause of action for P3000,000.00 puts
such an estimate and brings the case within the MTC's jurisdiction because of
the amount involved. (See Cruz v. Tan, 87 Phil. 627 [1950])


Complaint

Q. May P properly and correctly file a complaint in the RTC against D to
recover P1 Million based on a promissory note and another P1 Million
based on tortious interference with contract, and for foreclosure of a
real estate mortgage to secure a loan of P5 Million? (5%) [1999 Midterm
XII]

A. While causes of action may be joined against a common opposing party
whether of the same nature or character or whether they arise out of the
same contract or relation or whether they are for sums of money, yet none of
the causes of action must be a special civil action or action governed by
special rules otherwise there would be a misjoinder of causes of action.
Here, the cause of action for mortgage foreclosure is misjoined because it is
a special civil action. (Rule 2, Sec. 5)

Q. Can the court award the plaintiff damages prayed for in his complaint
to be in an "amount as will be proved at the trial"? (10%) [1996 Midterms
II]

A. Generally, no. It is required for purposes of computation of the docketing
fees payable, that the complaint specify the amount of damages being prayed
for not only in its body but also in its prayer. The court does not acquire
jurisdiction over an unspecified claim for damages, except in respect to
damages arising after the filing of the complaint or similar pleading the
amount of which damages need not be specified but to which the additional
filing fee shall be a lien on the judgment. (Original Dev't. & Const. Corp. v
CA, 202 SCRA 753).


Answer

Q. May lack of jurisdiction over the person be pleaded as an affirmative
defense and a preliminary hearing had thereon? (10%) [1996 Midterms
VIII]

A. Yes. Any ground for dismissal under Rule 16, except improper venue,
may be pleaded as an affirmative defense and a preliminary hearing had
thereon. A defendant is allowed to put up his own defenses alternatively or
even hypothetically. Defenses and objections not pleaded either in a motion
to dismiss or an answer, except for the failure to state a cause of action, are
deemed waived. Therefore, the defendant is enjoined to set up, along with
his objections to the court's jurisdiction over his person, all other possible
defenses. (La Naval Drug Corp. v CA, 236 SCRA 78).


Counterclaim and Cross-Claim

Q. L sued C to annul a deed of sale of a lot and for L to be declared the
owner thereof. Judgment went to C, and this judgment became final.
Thereafter, C filed an action against L, A and B for damages for the use
and occupancy of the same lot, A and B being L's transferees of the
house built on the lot, this house having been transferred by L to A and
B even before the filing of the annulment action. L, A and B moved to
dismiss C's complaint on the ground that it is barred by the judgment in
the first action. Resolve the motion to dismiss. (1994 Midterm Exam IX)

A. Motion to dismiss granted. The scone motion is barred by the "compulsory
counterclaim rule" (Rule (, Section 4) because the complaint for damages is
necessarily connected with the transaction subject matter of the first action.
Had the same been annulled in the first action then C would have no right to
collect rents from the occupants of the lot and house, while if the court
sustained the validity of the same (as it did) then C would have had such
right. The addition of A and B as additional defendants does not detract form
the res judicata effect of the judgment in the first case because these parties
should have been impleaded by C on his compulsory counterclaim in the first
auction. See Carpena v. Manalo, 1 SCAR 1060 (1981) and my annotation in
3 PHILAJUR 588 at 601-602 (1978).

Q. In an action in the RTC by the lessee against the lessor to fix a period
for his lease, may the RTC entertain the defendant lessor's counterclaim
for the ejectment of plaintiff lessee on the ground of the expiry of the
stipulated term in the lease contract? (5%) [1999 Midterm XI]

A. No, this is not a compulsory counterclaim because it is not within the
jurisdiction of the RTC as to its nature. (Rule 6, Sec. 7)


Q. Action on a fire policy against an insurance company which issued it.
The defendant insurer filed a third-party complaint against a re-insurer
which set up in his answer the defense alleged by the defendant insurer
that the loss was caused by the willful act of connivance of the plaintiff
insured. May the third-party defendant re-insurer counterclaim against
the plaintiff? [1999 UP Barops III]

A. Yes, provided that the counterclaim be in respect to the plaintiff's claim
against the third-party plaintiff. (Rule 6, sec. 13)




Q. The MTC dismissed, on defendant's motion, a complaint for unlawful
detainer grounded on termination of a month-to-month lease, for lack of
jurisdiction over the subject matter due to lack of prior demand to
vacate, and awarded in favor of the defendant the amount of P 5,000.00
as attorney's fees. Is this MTC decision vulnerable to attack on
certiorari? (10%) [1996 Midterms VII]

A. Yes. Since the MTC had no jurisdiction over the principal action for
unlawful detainer, then it had no jurisdiction over the compulsory
counterclaim for attorney's fees either. Defendant's claim for attorney's fees
is in the nature of a compulsory counterclaim, and a compulsory counterclaim
cannot remain pending for independent adjudication by the court. A
compulsory counterclaim is merely auxiliary to the proceeding in the original
suit and derives its jurisdictional support from this original suit. Besides, it
was defendant himself who caused the dismissal of his counterclaim by
moving for the dismissal of the complaint. (Dalisay v Marasigan, GR No.
115088, 20 June 1996.


Amended and Supplemental Pleadings

Q. A sued B in RTC-Manila for breach of contract. B filed a motion to
dismiss on the ground that the complaint fails to state a cause of action.
Before the motion to dismiss was resolved, A filed an amended
complaint. The RTC did not admit amended complaint, ruling that A
failed to obtain leave of court. A's motion for reconsideration was
denied; so, he filed a petition for certiorari in the Court of Appeals. B
moves to dismiss the petition contending that the CA has no
jurisdiction to issue certiorari, since only a question of law is involved.
Is the RTC judge correct? Does the CA have jurisdiction to issue
certiorari? Decide. (1993 Midterm Exam V)

A. No answer

Q. Husband filed a complaint in the RTC against his wife praying for
custody of their children and that their support be determined, the
complaint alleging that defendant-wife attempted to kill plaintiff-
husband by kicking him twice on his genital. After answer, plaintiff was
allowed by the trial court to amend his complaint by alleging that
defendant attempted to kill him by placing poison on his food and
praying for legal separation. Was the amendment properly allowed?
(10%) [1996 Midterms IV]

A. There was no evidence that the amendment was made with intent to delay
the action or that the cause of action was substantially altered. While the
reliefs sought are different, as the original complaint prays for custody and
support while the amended complaint prays for legal separation, what
determines the nature and character of an action is not the prayer but the
essential basic allegations of fact as set forth in the complaint. There is no
substantial alteration of the cause of action because defendant is not required
to answer for a liability or legal obligation wholly different from that which was
stated in the original complaint. Even granting that the causes of action
under the original and amended complains are different, still the amended
complaint should be admitted because such causes of action, as legal
separation, custody and support arose from the marital relationship between
the parties, and a party is allowed to state in one pleading as many causes of
action as may arise out of the same relation between the parties. (Anastacio
v Anastacio, 92 OG 2746.)


Formal Requirement Of Pleadings

Q. May a complaint which had been dismissed for failure to attach a
certification against forum shopping be re-filed? (5%) [2000 Finals III]

A. Yes, unless the dismissal order states that it is with prejudice. (Rule 7,
Sec 5, 2nd par)

Detail in pleading

Q. P company, a foreign insurance company, sued in the RTC-Manila
and alleged that it is duly authorized to do business in the Philippines,
but defendant in his answer denied this allegation as to P's capacity to
sue for lack of knowledge or information. What is the effect of
defendant's denial? [1999 UP Barops X]

A. None. The denial is ineffective for being a general denial and therefore is
inadequate to attack p's capacity to sue. (Rule 8, Sec. 4, 2nd sent.)

Filing and service of pleadings & other papers

Q. In an action by P against D in the RTC for recovery of possession
and damages, D filed an answer with counterclaims but furnished
counsel for P a copy of this answer by registered mail and his answer
did not contain any written explanation as to why service was not made
personally upon P. So, P filed a motion to expunge the answer and to
declare D in default on the ground that D did not observe the mandate
requiring personal service or an explanation of its absence. Rule on D's
motion. [1999 UP Barops VI]

A. Motion granted. Under Sec. 11, Rule 13 of the 1997 Rules of Civil
Procedure, personal service and filing is the general rule, and resort to other
modes of service and filing, the exception. Therefore, whenever personal
service or filing is practicable, in light of the circumstances of time, place and
person, personal service or filing is mandatory. Only when personal service
or filing is not practicable may resort to other modes be had, which must then
be accompanied by a written explanation as to why personal service was not
practicable. The absence of such explanation is a violation of the rule and
may be cause to consider the paper as not filed. (Solar Team Entertainment,
Inc. vs. Ricafort, G.R. No. 132007, August 5, 1998 [1st Div])

Q. In an unlawful detainer suit by P against D, the MTC Malolos
rendered judgment ordering D to vacate the premises and to surrender
their possession to P. Thereafter, a writ of execution of the judgment
and a writ of demolition, were issued. During the grace period allowed
D under the writ of demolition, D filed a separate action in RTC-Bulacan
against P and the provincial sheriff for specific performance on the
ground that D is entitled to receive the value of the improvements on
the lot subject of the ejectment case because he was a builder in good
faith. The RTC Bulacan issued a TRO and then later a preliminary
injunction, enjoining the enforcement of MTC Malolos' writ of execution
and order of demolition. Did the RTC Malolos act correctly? (10%)

A. No. This claim for compensation for improvements is a compulsory
counterclaim under R9S4 and therefore, D should have raised it in the
ejectment case even only alternatively because it is inconsistent with his
claim of ownership. [Cojuanco v. Villegas 184 SCRA 374 (1990)]

Q. May a court grant relief greater than that asked for in the prayer of
the litigant's pleadings? (5%)

A. See R9S3.

Q In an action in the RTC by the lessee against the lessor to fix a period
for his lease, may the RTC entertain the defendant lessor's counterclaim
for the ejectment of plaintiff lessee on the ground of the expiry of the
stipulated term in the lease contract.

A. No, this is not a compulsory counterclaim because it is not within the
jurisdiction of the RTC as to its nature. (rule 6, sec 7)


Q. May P properly and correctly file a complaint in the RTC against D to
recover P1 million based on a promissory note and another P1 million
based on tortious interference with contract, and for foreclosure of a
real estate mortgage to secure a loan of P5 million?

A. While causes of action may be joined against a common opposing party
whether of the same nature or character or whether they arise out of the
same contact or relation or whether they are for sums of money, yet none of
the causes of action must be a special civil action or action governed by
speciai rules otherwise, there would be a misjoinder of causes of action.
Here, the cause of action for mortgage foreclosure is misjoined because it is
a special civil action. (Rule 2, sec 5).


VII. MOTIONS


VIII. OBJECTIONS TO PLEADINGS


Q. P sued D and E for reconveyance, with damages, of a parcel of land. After
filing his answer, E served on P written interrogatories. Despite the lapse of
1/2 years, the written interrogatories remained unanswered. So on Es MTD,
the court issued an order directing P to answer the written interrogatories
within 10 days from receipt of the order. This order having gone unheeded,
the court issued another order dismissing the complaint against E. After the
order of dismissal had become final, P filed a motion for admission of
amended complaint in which E is again impleaded as a defendant on the
same cause of action alleged in the original complain, plus and additional
cause of action impugning the order of dismissal as being null and void for
allegedly having been obtained through fraud. E moves to dismiss amended
complaint on the ground of res judicata. Rule on Es MTD. (10%)

A. MTD granted. Dismissal was in effect for failure to prosecute and
therefore has the effect of an adjudication on the merits under R17S3. Also,
it is arguable that the dismissal is under R29S5 and therefore an adjudication
on the merits. The added cause of action in the amended complaint is
improper because such an alleged cause of action can be raised only in a
motion for new trial or in a R38 petition for relief. [See Arellano v. CFI of
Sorsogon; 65 SCRA 46 (1975)]

Motion To Dismiss: Want Of Jurisdiction

Q. P sued D in the RTC to recover the sum of P20,000.00 plus interest. D
answered alleging payment by set-off. After pre-trial but before the
case could actually be tried, D filed a motion to dismiss on the ground
that the RTC has no jurisdiction over the case. Instead of filing an
opposition to D's motion to dismiss, P filed a motion for leave to amend
his complaint by including an allegation of a cause of action for
P5,000.00 attorney's fees. If you were the judge, how would you resolve
D's motion to dismiss and P's motion for admission of his amended
complaint? (1993 Midterm Exam I)

A. I would grant D's motion to dismiss and deny P's motion to admit amended
complaint. (a) A motion to dismiss on the ground of lack of jurisdiction over
the subject matter may be filed at any stage of the action. (See Rule 9, Sec.
2); (b) D already having answered, P must have to ask for leave of court to
amend his complaint (Rule 10, Secs. 2 and 3). While P's proposed
amendment may not alter his cause of action, still the amendment is not
allowable because it would have the effect of conferring jurisdiction upon the
court. Since the amount alleged in the original complaint does not exceed
P20,000.00 excluding interest, the RTC did not acquire jurisdiction over the
case, and so the RTC has neither the power nor the jurisdiction to act on the
motion for the admission of the amended complaint, much less to allow such
amendment, since the court must first acquire jurisdiction over the case in
order to act thereon. (see Rosario v. Carangdang, 96 Phil. 845 [1955]).

*** take note of the change in jurisdictional amounts

Q: Action by P against D in the RTC for damages allegedly suffered by P
while a paying passenger in a vehicle owned and driven by D. During
the pre-trial, the parties entered into such a comprehensive stipulation
of facts that the judge was moved to decide the case on summary
judgment. Proper? (5%)

A: No. A hearing, on motion duly noticed, is required by Rule 34. (Based on
Godala v. Cruz, 88 O.G. 7899 [CA; 1989]).


Motion To Dismiss: Litis Pendentia

Q. P filed a complaint in the housing and Land Use Regulatory Board
(HLURB) to compel D to release and deliver a condominium certificate
of title and to desist from collecting fees for community benefit and to
release all such fees collected and for damages. During the pendency
of the HLURB case, D filed a complaint against P in the RTC for the
collection of fees for administrative and maintenance expenses,
common comfort, security and sanitation. P then filed a motion to
dismiss the RTC case on the ground of pendency of a similar case
before the HLURB. Resolve the motion to dismiss. (1993 Midterm Exam
IIa)

A. Motion to dismiss denied. Litis pendentia as a ground for dismissal of an
action refers to another pending action in a court of justice, excluding an
administrative agency. (Puzon Industrial Dev't. Corp. v. Magtolis, CA 89 O.G.
p. 2487 [1989]).


Q. A is the owner of a parcel of land pending registration in the RTC of
Rizal. He permitted B, a family friend, to construct a small house on the
land and to live therein for a period of two years only. The two-year
period expired on 1 may 1994, but B failed and refused to vacate the
land. Hence, on 15 June 1994, A filed an action against in the RTC of
Rizal for the recovery of possession of the land. B filed a motion to
dismiss the case on the ground that there is a pending land registration
case involving the said property. Is the motion well founded? (1994
Midterm Exam Ia)

A. No lis pendens because no identity of causes of action or rights asserted
and reliefs prayed for, so that judgment which may be rendered in one case
would not necessarily result in res judicata in the other case. An action for
recovery of possession is distinct and different from an action for recovery of
title or ownership. Moreover, an RTC, acting as a land registration court, has
a limited and special jurisdiction confined to the determination of the legality
and propriety of the issue of title. It has no power to entertain issues of
rightful possession and claims for damages emanating from ownership.
(Medina and Bernal v. Valdellon, 63 SCRA 276 [1975]).


Q. A lessee filed an action in the RTC against his lessor praying for a
decree fixing the period of his lease. Before pleading to the complaint,
the lessor filed his own complaint for unlawful detainer in the MTC
seeking the lessee's ejectment from the premises on the ground of
expiry of the term of the lease contract. The lessee moved to dismiss
the unlawful detainer complaint on the ground of litis pendentia. Rule
on the motion. [1996 Finals II]

A. Motion to dismiss denied. Both cases involve the common issue of the
lessee's right to possession of the premises, and this issue is better resolved
in an unlawful detainer action. What, then, ought to be dismissed is the RTC
action and not the unlawful detainer case. The fact that the unlawful detainer
action was filed later that the RTC action is of no moment, because section
1(e) of Rule 16 requires only another pending action - not a prior pending
action. (Teodoro vs. Mirasol, 99 Phil. 150 [1956]).


Q. P filed a complaint in the RTC-Isabela against D for the recovery of
an alleged overpayment for a rice thresher. Later, but before the
summons in the Isabela case could be served on D, D filed in RTC-
Manila an action against P for collection of the alleged balance on the
purchase price of the same rice thresher. P moved to dismiss the
Manila case on the ground of litis pendentia. Rule on the motion. [1996
Finals III]

A. Motion to dismiss granted. All the requisites for litis pendentia are present.
The Isabela action was already a pending action at the time of the filing of the
Manila action even though the summons had not yet been served. Reason:
A civil action is commenced by the mere filing of a complaint. (Rule 2, sec. 6;
Salacup vs. Maddela, Jr., 91 SCRA 275 [1971]).


Motion To Dismiss: Res Judicata

Q. Discreet Bank extrajudicially foreclosed P's real estate mortgage and
itself purchased the property at the foreclosure sale. After the
expiration of the one-year redemption period without any redemption
being effected, Discreet Bank filed with the Registry of Deeds an
affidavit of consolidation of ownership and, consequently, was issued a
new TCT. Thereafter, Discreet Bank filed a petition for the issuance of a
writ of possession with the RTC and this petition, docketed in the land
registration case, was opposed by P and, after a full-dress hearing, the
RTC granted the petition and ordered the issuance of a writ of
possession. After the decision in this case became final, P filed a
complaint against Discreet Bank to set aside the sale of the mortgaged
property and cancel the writ of possession, P reiterating the grounds
raised in the opposition to the petition for the issuance of writ of
possession. Discreet Bank moved to dismiss this caser on the ground
of res judicata, but this motion was opposed by P on the ground that
the decision in the writ-of-possession case cannot constitute res
judicata because P could not present his objections in that proceeding,
the issuance of a writ of possession being purely ministerial with the
court and the present action being the correct one to attack the
foreclosure sale. The court dismissed this second case, not on the
ground of res judicata but for lack of jurisdiction, the court reasoning
that P's attack at the foreclosure sale tantamounts to an attack at a final
order of the RTC and therefore is within the exclusive jurisdiction of the
CA. Several months later, P filed another complaint against Discreet
Bank for the annulment of the foreclosure sale and reconveyance of the
mortgaged property. As before, Discreet Bank moved to dismiss on the
ground of res judicata, arguing that the issues raised in this new case
had been resolved in the writ-of-possession case and in the second
case foe the annulment of the foreclosure sale, but this motion was
opposed by P on the ground that the dismissal of the second case was
not an adjudication on the merits, the dismissal being for lack of
jurisdiction and therefore cannot constitute res judicata.

(a) Was the ruling on the first motion to dismiss correct? (1993 Midterm
Exam IIIa)

A. While the hearing in the writ-of-possession case was supposed to be
summary , a full-dress hearing was actually conducted and P submitted
himself to it. P cannot now therefore be heard to challenge the jurisdiction of
the court and to escape or repudiate the effects of its judgment. So, the order
in the writ-of-possession case bars the second case on res judicata grounds.

(b) Rule on the motion to dismiss the third case. (1993 Midterm Exam
IIIb)

A. In dismissing the second case for lack of jurisdiction, the court recognized
the order of dismissal in the writ-of-possession case as a final one which it
could not annul, since the authority to annul such orders pertains to the CA
only. This was, by itself, an adjudication on the merits of P's claim because it
declared him no longer entitled to the right upon which his claim is based. A
judgment is deemed to be rendered upon the merits when it amounts to a
declaration of the law as to the respective rights and duties of the parties,
based upon the ultimate facts or state of facts disclosed by the pleadings and
evidence, and upon which the right of recovery depends, irrespective of
formal, technical or dilatory objections or contentions. (De Ramos v. CA, 213
SCRA 207 [1992])

Q. Levy of execution of money judgment in Civil Case No. 12345 was
made on property of D and at the execution sale, this property was sold
to plaintiff P. Title was consolidated in P after the lapse of the
redemption period. Citing what is alleged to be equitable grounds,
however, D filed a motion in the said Civil Case No. 12345 that he be
allowed to redeem the property or his mother to purchase it; this motion
was denied. D then filed another action in the RTC, Civil Case No.
67890, to recover the same property on the ground of promissory
estoppel. If you were the counsel of P, what step would you take in Civil
Case No. 67890? (1994 Midterm Exam VII)

A. I would move to dismiss Civil Case No. 67890 on the ground of res
judicata. Both cases involve the same cause of action, the parties are the
same, and the addition of D's mother in Civil Case No. 12345 does not
militate against the identity of parties between the two cases because the
mother represents the same interest as D. (Santos v. CA, 226 SCRA 630
<3rd Div., 1993>)

Q. P sued D in the MTC for ejectment on the ground of non-payment of
rentals. After trial on the merits, judgment was rendered dismissing the
complaint upon the finding that D has been paying his rentals on time.
Thereafter, P demanded an increase in D's rentals, and upon D's failure
to pay the increased rentals, P promptly filed a complaint against D in
the RTC praying for his eviction and for damages; the RTC dismissed
this complaint for lack of jurisdiction. With the RTC dismissal, P filed
an action for unlawful detainer against D in the MTYC based on the
same allegations as his complaint in the RTC. D now moves to dismiss
this second unlawful detainer complaint on the ground that it is barred
by prior judgment. Rule on the motion to dismiss. (1994 Midterm Exam
VIIIb)

A. Motion to dismiss denied. The second ejectment action is not barred by
the decision in the first ejectment case; no identity of causes of action
because the ground for ejectment in the second action is for non-payment of
different rentals. Nor is the RTC judgment a bar because it is not on the
merits. Viray v. Marinas, 49 SCRA 44 (1973).

Q. H, husband, filed an action against his wife, W, to have their marriage
declared void due to the latter's alleged psychological incapacity to
contract marriage. After trial, the action was dismissed. Then, H filed
another action against W to have the same marriage declared void for
alleged absence of a marriage license. Can the second action prosper
over timely opposition? (5%) [2000 Finals IV]

A. Depends on whether the ground urged by H in the second action was
already known to and could have been raised by H in the first action. (See
Rule 39, Sec. 47 [b]): "or as to any matter that could have been raised in
relation thereto.")

Q. X Bus Company purchased 10 buses from Y Motor Co. covered with
promissory notes and deeds of chattel mortgage. Then, Y assigned
these notes and deeds of chattel mortgage to A Bank and then
subsequently assigned the same notes and chattel mortgages to B
Finance Co. Then, when X defaulted on the notes, Y, A and B
demanded payment. In view of their conflicting claims against it, X filed
in the RTC an interpleader action against Y, A and B praying that the
court determine which among them is entitled to payment on the notes.
Three days later, B filed an action for replevin with damages against X
and Y praying that Y be declared liable to pay B's claim against X in the
event that B is not able to recover thereon against X. Defendants
moved to dismiss the replevin complaint on the ground of the pendency
of the interpleader action. Rule on the motion to dismiss. (5%) [1999
Midterm IX]

A. Motion to dismiss granted. There is identity of parties between the
interpleader case and replevin case. In the interpleader case, the plaintiff is
X and the defendants are Y, A and B, whereas in the replevin case, the
plaintiff is B and the defendants are X and Y. In both cases therefore, B, X
and Y are parties with the addition of A, but this addition does not retract from
the requisite identity. In both cases, the rights spring from the deeds of
assignment executed by Y in favor of A and B, covering the same debts of X
owing to Y. The identity in both cases is such that any judgment that may be
rendered in the interpleader case would amount to res judicata in the replevin
case; if judgment in the interpleader case is that the assignment to A would
prevail over the assignment to B, such judgment would be binding on the
replevin case and undercut B's cause of action in the replevin case. (Sanpiro
Finance Corp. vs. IAC, 220 SCRA___ [3rd Div., 1993])

Q. In the belief that the decedent died intestate, X, Y and Z, his nephews,
initiated in the RTC an intestate proceeding wherein they obtained an
order approving their extrajudicial partition of the estate. But later, X
filed a motion to annul the order of approval on the ground that a will of
the decedent had been discovered and therein sought its probate. The
probate court denied X's motion on its finding that the alleged will had
been destroyed and revoked by the decedent. Two months later, X filed
a petition in another RTC for probate of the alleged will, but Y and Z
moved to dismiss the petition on the ground that it is barred by the
judgment of the intestate court finding the alleged will to have been
destroyed and revoked. Rule on the motion to dismiss. (10%) [1995
Finals I]

A. Motion to dismiss denied. The intestate court had no jurisdiction to
entertain the probate of the alleged will in the intestate proceeding and
therefore it could not have made a finding that the alleged will had been
destroyed and revoked (Casiano v Maloto, 79 SCRA). So, the intestate court
not having jurisdiction to make this finding, the petition for probate of the
alleged will cannot possibly be barred by res judicata.


Q. Enumerate all the ways by which a civil case in our courts may be
terminated, with binding and res judicata effect, without a full-dress
evidentiary trial where the parties are enabled to present their
respective testimonial and other evidence. (10%) [1997 Midterms X]

A.
1. judgment on the pleadings
2. summary judgment
3. dismissal on motion of the defendant
4. voluntary dismissal by the plaintiff
5. dismissal for plaintiff's failure to prosecute
6. judgment by default
7. judgment on confession or on compromise
8. judgment on a complete stipulation of facts.

Q. P sued A and B to recover a parcel of land. Judgment went for A and
B. Then, A sued B to recover the same parcel. Is this second action
barred by res judicata? (5%) [1997 Midterms VIIIa]

A. It depends. If A's claim against B was already existing at the time of the
first action and was a compulsory counterclaim in that case, then the second
action is barred under Rule 9, Sec. 4. Otherwise, there is no estoppel
because A and B were no adverse parties in the first case and their relative
rights and liabilities as co-defendants inter-se were not brought in issue.
(Valdez v Mendoza, 89 Phil. 83)


Motion To Dismiss: Improper Venue

Q. P, a resident of Manila, sued D, also a resident of Manila, in the RTC-
QC to collect P500,000 based on a promissory note. The RTC-QC
dismissed the action motu proprio on the ground that the parties, being
both residents of Manila, it has no jurisdiction over the case. Is the
dismissal correct? (5%) [1999 Midterm XV]


A. No, the matter of residence is one of venue only and not of jurisdiction.
The court cannot motu proprio dismiss an action for improper venue, a
motion being required for that purpose. Venue touches more upon the
convenience of the parties rather than upon the substance or merits of the
case; it involves no more and no less than a personal privilege which may be
lost by failure to assert it seasonably. (See Guzman vs. Batario, 95 O.G. pp.
3477 [CA; 1994])

Q. May a court grant relief greater than that ask for in the prayer of
the litigants pleading?

A. See R9S3.

In an action in the RTC by the lessee against the lessor to fix a period for his
lease, may the RTC entlthough action is for annulment of the contract, the
prime objective is to recover the land. Venue should be Bulacan. (Gavieroz
v. Sanchez, 94 Phil 9760) R4.1


Motion to dismiss: want of jurisdiction

Q. Action by P against D in the RTC for a sum of money was sought to
be dismissed by D on the ground of prescription. The motion to
dismiss was denied and D brought a special civil action for certiorari in
the CA against the order of denial of his motion to dismiss. The CA
dismissed the petition. Then, D filed his answer, after which trial was
held and judgment rendered against D. On appeal from this judgment
to the CA, D filed a Motion to Dismiss the complaint on the ground of
lack of jurisdiction, alleging that P had not paid the appropriate docket
fees in the trial court. Rule on the motion to dismiss. (5%) [1999
Midterm V]

A. Motion to dismiss denied. Although the payment of the proper docket fees
is a jurisdictional requirement, the TC may allow the plaintiff in an action to
pay these fees within a reasonable time before the expiry of the applicable
prescriptive or reglementary period. But if the plaintiff fails to comply with this
requirement, defendant should timely raise the issue of jurisdiction or else he
would be considered in estoppel. Here, D filed an answer and participated in
the proceedings before the TC. It was only after judgment was rendered
against him that he raised the issue on jurisdiction. While the lack of
jurisdiction ___________________may be raised at any stage of an action,
the party raising such question may be estopped if he has actively taken part
in the very proceedings which he questions and he only objects to the court's
jurisdiction because the judgment or decision consequently rendered is
adverse to him. (National Steel Corp.vs. CA, G.R. No. 123215, Feb. 2, 1999
[2nd Div.])


Motion To Dismiss: Insufficient Allegations

Q. The complaint simply alleges that D is legally liable to P for damages
in a named amount. D moves to dismiss this complaint for failure to
state a cause of action. Resolve the motion to dismiss. [1999 UP
Barops VIII]

A. Granted. The operative or constitutive facts making up the pleaded cause
of action are not stated. The only matters pleaded are conclusions of law.


Motion To Dismiss: Non-Compliance With A Condition Precedent For
Filing

Q. W sued her husband (H) and X Company to annul a transfer of her
paraphernal lot by H to X Company on the claim that the transfer was
ultra vires a power of attorney given by W to H. H moved to dismiss on
the ground that her complaint did not allege prior efforts towards a
compromise. Resolve the motion to dismiss. [1996 Finals I]

A. Motion to dismiss denied. The requirement of prior efforts to a
compromise does not apply where there is a stranger to the action.
(Magbaleta vs. Gonong, 76 SCRA 511 [1977]).


Motion For Judgment On The Pleadings
Motion For Summary Judgment

Q. Where in an action by P against D to recover P3 Million damages for
physical injuries allegedly suffered in a vehicular collision, D files an
answer which contains nothing but general denials, can P have
judgment on the pleadings or summary judgment? (5%) [1999 Midterm
XVIII]

A. No judgment on the pleadings because of failure to make a specific denial
does not amount to an admission of the averments as to the amount of
unliquidated damages (Rule 8, Sec. 11) and therefore there is a triable issue
of fact (Rule 34, Sec. 1). But summary judgment may be granted if, after
notice and hearing, the court should find, on the basis of the pleadings,
supporting affidavits, depositions and admissions on file that, except as to the
amount of damages, there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law. (Rule 35,
Sec. 3)

Q. What is plaintiff's best procedural recourse against an answer which
pleads no more than negative pregnants? (5%) [1997 Midterms IXa]

A. Move for judgment on the pleadings.

Q. P sued D to quiet title to a parcel of land claiming to be the owner of
the land and to have inherited it from his father. On the other hand, D
answered by asserting ownership over the same land in himself by
claiming to have inherited it from his own father, the alleged owner. P
filed a reply to which was attached a document entitled
"Acknowledgment of Ownership" duly signed by D's father and
conceding ownership of the land to P's father. After pre-trial, the court
rendered summary judgment in P's favor on the ground that the
genuineness and due execution of the document annexed to P's reply
was not denied by D under oath. Is the summary judgment correct?
(1996 Midterm Exam VIII)

A. No. In the first place, there was no motion for summary judgment. In the
second place, the issue of ownership is a genuine factual issue which has to
be resolved by a trial on the merits. There is no admission of the
genuineness and due execution of the Acknowledgement of Ownership
because this document was signed by D's father and not by D himself and so
there was no need for D to deny it under oath. (Cadirao v. Estenzo, 132
SCRA 83 [Second Division, 1984])

Motion To Dismiss: Want Of Jurisdiction

Q. P sued D in the RTC to recover the sum of P20,000.00 plus interest. D
answered alleging payment by set-off. After pre-trial but before the
case could actually be tried, D filed a motion to dismiss on the ground
that the RTC has no jurisdiction over the case. Instead of filing an
opposition to D's motion to dismiss, P filed a motion for leave to amend
his complaint by including an allegation of a cause of action for
P5,000.00 attorney's fees. If you were the judge, how would you resolve
D's motion to dismiss and P's motion for admission of his amended
complaint? (1993 Midterm Exam I)

A. I would grant D's motion to dismiss and deny P's motion to admit amended
complaint. (a) A motion to dismiss on the ground of lack of jurisdiction over
the subject matter may be filed at any stage of the action. (See Rule 9, Sec.
2); (b) D already having answered, P must have to ask for leave of court to
amend his complaint (Rule 10, Secs. 2 and 3). While P's proposed
amendment may not alter his cause of action, still the amendment is not
allowable because it would have the effect of conferring jurisdiction upon the
court. Since the amount alleged in the original complaint does not exceed
P20,000.00 excluding interest, the RTC did not acquire jurisdiction over the
case, and so the RTC has neither the power nor the jurisdiction to act on the
motion for the admission of the amended complaint, much less to allow such
amendment, since the court must first acquire jurisdiction over the case in
order to act thereon. (see Rosario v. Carangdang, 96 Phil. 845 [1955]).

*** take note of the change in jurisdictional amounts

Q: Action by P against D in the RTC for damages allegedly suffered by P
while a paying passenger in a vehicle owned and driven by D. During
the pre-trial, the parties entered into such a comprehensive stipulation
of facts that the judge was moved to decide the case on summary
judgment. Proper? (5%)

A: No. A hearing, on motion duly noticed, is required by Rule 34. (Based on
Godala v. Cruz, 88 O.G. 7899 [CA; 1989]).

Q. In an action by P against D in the RTC for sum of money, P
obtained a writ of preliminary attachment on defendant's properties.
Soon after, trial commenced, D died, and so his heirs moved for the
dismissal of the case. Rule on the dismissal motion. (5%)

A. Dismissal motion granted. The principal action to which the
attachment is merely ancillary, is a money claim and the attachment cannot
survive the dismissal of this principal action. {Regala v. CA, 183 SCRA 595
(1990)]

Q. Action by P against D in the RTC for the collection of sums of
money covered by two promissory notes which were attached to the
complaint. There were allegations in the complaint of partial payments
of outstanding balance. D duly filed an answer denying all the material
allegations of the complaint because " he does not have knowledge
sufficient to constitute a belief as to the truth of the allegations
contained therein." Would P be entitled to judgment on the pleadings?
(10%)

Q. X Bus Co. purchased 10 buses from Y Motor Co. covered with
promissory notes and deeds of chattel mortgage. Then, Y assigned
these notes and deeds of chattel mortgage to A Bank and then
subsequently assigned the same notes and chattel mortgage to B
Finance Co. Then, when X defaulted on the notes, Y, A and B
demanded payment. In view of their conflicting claims against it, X filed
in the RTC an interpleader action against Y, A and B praying that the
court determine which among them is entitled to payment on the notes.
Three days later, B filed an action for replevin with damages against X
and Y praying that Y be declared liable to pay B's claim against X in the
event that B is not able to recover thereon against X. Defendants
moved to dismiss the replevin complaint on the ground of the pendency
of the interpleader action. Rule on the motion to dismiss.

A. Motion to dismiss granted. There is identity of parties between the
interpleader case an the replevin case. In the interpleader case, the plaintiff
is X and the defendants are Y, A and B. In the replevin case, the plaintiff is B
and the defendants are X and Y. In both cases, therefore, B, X and Y are
parties with the addition of A, but this addition dos not detract from the
requisite identity. In both cases, the rights spring from the deeds of
assignment executed by Y in favor of A and B, covering the very same debts
of X owing to Y. The identity in both cases is such that any judgment that
may be rendered in the interpleader case would amount to res judicata in the
replevin case; if judgment in the interpleader case is that the assignment to A
would prevail over the assignment to B, such judgment would be binding on
the replevin case and undercut B's cause of action in the replevin case.
(Sanpiro Finance Corp. v IAC, 220 SCRA ... [3rd Div., 1993])

Q. P, a resident of Manila, sued D, also a resident of Manila, in the
RTC-QC to collect P500,000.00 based on a promissory note. The RTC-
QC dismissed the action motu proprio on the ground that the parties,
being both residents of Manila, it has no jurisdiction over the case. Is
the dismissal correct?

A. No, the matter of residence is one of venue only and not of
jurisdiction. The court cannot motu proprio dismiss an action for improper
venue, a motion being required for that purpose. Venue touches more upon
the convenience of the parties rather than upon the substance or merits of
the case. It involves no more and no less than a personal privilege which
may be lost by failure to assert it seasonably. (See Guzman v Batario, 95
O.G. pp 3477 [CA 1994])

Q. Where in an action by P against D to recover P3 Million
damages for physical injuries allegedly suffered in a vehicular collision,
D files an answer which contains nothing but general denials, can P
have judgment on the pleadings or summary judgment?

A. No judgment on the pleadings because the failure to make a specific
denial does not amount to an admission of the averments as to the amount of
unliquidated damges (Rule 8, Sec 11) and therefore, there is a triable issue of
fact (Rule 34, Sec 1). But summary judgment may be granted if, after notice
and hearing, the court should find, on the basis of the pleadings supporting
affidavits, depositions, and admissions on file that, except as to the amount of
damages, there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law. (Rule 35, Sec 3)

Q. Where there is an issue as to defendant's liability for exemplary
damages, may the court render summary judgment in the case?

A. No. Summary judgment is proper only when there is no triable issue
of material fact except as to the amount of damages, not as to the liability for
damages. (Rule 35, sec 3)

Q. How does the defendant raise the issue as to his legal capacity
to be sued?

A. By moving to dismiss on the ground that the court has no jurisdiction
over his person. (Rule 16, sec 1[a])

Q. P sued D to recover possession and ownership of a parcel of
land, but this action was dismissed (after the case was scheduled
several times for trial) for P's failure to prosecute. After the dismissal
order had become final, P brought another action against D for quieting
of title over the same parcel of land. D moved to dismiss this 2nd action
on the ground of res judicata. Rule on the motion.

Motion to dismiss granted. The dismissal had the effect of an adjudication on
the merits, the court not indicating otherwise. (Rule 17, sec 3) The judgment
in the first case having become final and there being the requisite identity of
parties, subject matter and causes of action, res judicata bars second action.
(Panado v Cortez, 94 OG 4 [CA;1993])

Q........basis of the decree, in the interpleader suit, A won the ejectment
action. B did not appeal this judgment, but prevailed on his earlier
appeal from the interpleader decree an was awarded the rents which
has been collected. When B sought to bring an ejectment action
against A, the latter pleaded res judicata, based on his previous
successful ejectment action. Rule on A's invocation of res judicata.

A. Res judicata properly applies. The judgment in the ejectment action
is final and not open to attack collaterally, but subject to impeachment only
through some form of direct attack. The appellate court was limited to a
review of the interpleader decree. (Reed v Allen, 26 U.S. 191, 52 S. Ct. 532,
76 L. Ed., 1054 [1932])

Q. Distinguish "law of the case" from res judicata

Q. Defendant moved to dismiss the complaint on the ground that
its allegations are "not sufficient to warrant the relief prayed for." Rule
on the motion to dismiss.

A. 1Motion to dismiss denied. This is not a ground for a motion to
dismiss, and the prayer is part of the complaint and, save in case of default,
is of no importance. (Camponanes v Bartolomen, 38 Phil 608).


Q. P, a resident of Manila, filed a complaint against D, a resident of
Iloilo, in the RTC-Manila. This complaint contains 2 causes of action,
one for money, and the other for title to real property in Baguio, both
causes of action arising out of the same transaction between the
parties. Is there anything procedurally wrong with the complaint?

A. There is misjoinder of causes of action, and therefore the court
should order their separation so that each cause of action may proceed
independently of the other. While joinder of causes of action is allowed, the
cause of action for title to property in Baguio...mislaid. (Rule 2, secs 5 [c] and
6)










IX. DISMISSALS AND DEFAULTS

Q: In his effort to unclog his docket and coming across the record of
Special Proceedings No. 801, a guardianship case involving a minor
with properties worth more than a million pesos, and finding the said
case to have been pending since way back in 1983, after petitioner had
presented one witness only, following the appointment of X as
guardian, Judge Y of the Nueva Ecija Regional Trial Court dismissed the
case for failure to prosecute. Is the order of dismissal valid? (5%)

A: Based on 1985 Bar Exam. No. A guardianship case involving a minor
continues until the minor has reached the age of majority. It cannot therefore
be dismissed for failure to prosecute.

Q: Does dismissal of a complaint on plaintiff's motion carry with it the
dismissal of defendant's compulsory counterclaim? (5%)

A: No, the dismissal "shall be limited to the complaint." (Rule 17, Sec. 2)

Q: P sued D to compel the latter to execute a deed of sale to him over a
parcel of land the purchase price of which had allegedly already been
fully paid by P. After his motion to dismiss on the ground of
prescription was denied, D filed his answer in due course and thence
trial was held. After trial, judgment was renderd against D who then
filed a motion to dismiss for lack of jurisdiction on the ground that P did
not pay the correct docket fees which should have been assessed on
the basis of the value of the property and damages sought and not on
the basis of the action as one for specific performance when it was
actually for recovery of property. Rule on the motion to dismiss. (10%)

A: Motion to dismiss denied. In the first place, the action is really for recovery
of real property and not for specific performance since P's primary objective is
to regain the ownership and possession of the parcel of land. In the second
place, although the payment of the proper docket fees is a jurisdictional
requirement, the trial court may allow the plaintiff to pay the same within a
reasonable time before the expiration of the applicable prescriptive or
reglementary period. In any event, the balance between the appropriate
docket fees and the amount actually paid by the plaintiff will always be
considered a lien on any judgment P may obtain. Thirdly, the motion to
dismiss came too late. D is already estopped from raising the issue of
jurisdiction after he had actually taken part in the very proceedings which he
questions and after the court had rendered a judgment adverse to him. (See
National Steel Corp. vs. Court of Appeals, 302 SCRA 522 [2nd Div.; 1999])

Q: Where the defendant has been declared in default, does the plaintiff
still have to present evidence to support his complaint in order for him
to obtain judgment thereon? (5%)

A: No need. The Court may render judgment granting plaintiff such relief as
his pleading may warrant unless in its discretion the court requires him to
submit evidence. (Rule 9 Sec. 3)


Dismissals

Q. Action by P against D in the RTC for recovery of a parcel of land.
After joinder of the issues but before actual trial, P filed a manifestation
that he is no longer interested in prosecuting his complaint provided,
however, the defendant foregoes with his counterclaim. D filed a
counter-manifestation agreeing to the dismissal of the complaint and
his counter claim. Whereupon, the RTC issued an order dismissing
plaintiffs complaint and defendants counterclaim without costs. Ps
successor-in-interest now sues to recover the same parcel, and Ds
successor-in-interest moves to dismiss this new complaint on the
ground of res judicata. If you were the judge, would you grant the
motion to dismiss? (1994 Midterm Exam IIa)

A. No. Dismissal of the first case was without prejudice. The dismissal having
been at plaintiff's instance and not having specified that it was with prejudice,
it is one "without prejudice" within the meaning of Sec. 2, Rule 17. Vergara v.
Ocumen, 114 SCRA 446 (1982).

Q. Relying on a document of sale, P sued D in the RTC to recover
ownership of a parcel of land. For failure of P to amend his complaint
conformably to an order of the court, the complaint was dismissed. A
month thereafter, P re-filed the same complaint in the RTC, and this
complaint is now met with a motion to dismiss by D on the ground of
res judicata. Resolve the motion to dismiss. (1994 Midterm Exam VIIIa)

A. Motion to dismiss granted. The dismissal of the first case was with
prejudice pursuant to Section 3, Rule 17. Therefore, all requisites for res
judicata are present. (Enriquez v. Boyles, 226 SCRA 666 3rd Div., 1993)

Q. May a court dismiss an action for failure of plaintiff's lawyer to
appear at the trial despite due notice? (5%)

A. No. R17S3 does not authorize a dismissal on the ground of absence of
counsel. What the court should do is to grant the plaintiff and hour or two to
engage the services of a new lawyer. [Dayo v. Dayo; 95 Phil 703 (1954)]

Defaults

Q. In an action by P against D in the RTC for a sum of money, summons
with copy of the complaint was served on D on 22 April 1995. For filing
his answer one month later without any previous extension of his time
to plead and on P's motion, the RTC declared D in default and thereafter
rendered judgment by default against him. After his motion for
reconsideration of the default order was denied, D went to the Ca on
certiorari and prohibition to challenge the default order. Is D's petition
tenable? (1996 Midterm Exam VIb)

A. No. Certiorari and prohibition are improper because D has till an
appropriate remedy by way of a Rule 38 petitions for relief. (See Lina v. CA,
135 SCRA 637 [1985])

Q. Due to personal injuries suffered in a vehicular collission, P sued D
for P300,000 in actual damages, P1 Million in moral damages, P1 Million
in exemplary damages and P500,000 for attorney's fees. Assuming that
D is declared in default, how much can the court properly award P?
(5%) [1999 Midterm XIII]

A. Nothing, except probably such attorney's fees as the court may find
reasonable. Unliquidated damages cannot be awarded against a party
declared in default. (Rule 9, Sec. 3[d])

Q. Due to personal injuries suffered in a vehicular collision, P sued
D for P300,000.00 in actual damages, P1 Million in moral damages, P1
Million in exemplary damages and P500,000.00 for attorney's fees.
Assuming that D is declared in default, how much can the court
properly award P?

A. Nothing, except probably such attorney's fees as the court may find
reasonable. Unliquidated damages cannot be awarded against a party
declared in default. (Rule 9, Sec 3[d]).

Q. Do you see any advantage that plaintiff may gain by obtaining a
voluntary dismissal of his complaint before the court can act on
defendant's motion to dismiss the same complaint for failure to state a
cause of action?

A. Dismissal for failure to state a cause of action is an adjudication on
the merits and has res udicata effect, whereas a voluntary dismissal before
answer is not. Besides, the court might award attorney's fees even as it
dismisses the case for failure to state cause of action, and plaintiff can avoid
this possibility by having the case dismissed.

Q. In what instances may a judgment by default be rendered
against defendant?

A. (1) When defendant has been declared in default for failure to answer
within the reglementary period. (Rule 9, sec 3). (2) When defendant refuses
to obey discovery order. (Rule 29, Sec 3[a])

Q. Where the defendant was declared in default despite the fact
that he had not been duly summoned, does he still have to demonstrate
a "meritorious defense" as a condition precedent to setting aside the
default order?

A. No more. The default judgment is illegal and the motion to set it
aside does not have to be accompanied by an affidavit of merit. (Ponio v
IAC, 133 SCRA 577, 2nd Div [1994]) Besides, the theory of the requirement
that there would be no purpose served by re-opening the judgment if
defendant would simply lose on the merits in any event does not apply
because had the defendant been notified of the suit, he might have worked
out a settlement, or paid the debt, or himself raised enough funds to pay the
debt, rather than to suffer its being sold at a sheriff's sale. (See Perlata v
Heights Medical Center, Inc, 485 US 80, 108 S. Ct. 896, 99 L2nd 75 [1988])
























X. PROVISIONAL REMEDIES

Q. P sued D in the RTC on a claim for P300,000.00 and obtained a
writ of preliminary attachment on D's property. The sheriff attached a
Mercedes Benz car found in D's garage. Then, T, a brother of D, filed
with the sheriff a third party claim, T swearing in his affidavit of third
party claim that his right to the possession of the Mercedes Benz car is
derived from the fact that D purchased this car with funds borrowed
from him. What action, if any, should the sheriff take on T's third party
claim? (5%)

A. The sheriff should just ignore T's third-party claim. The affidavit is
insufficient under R57S14 to cause discharge of the attachment because the
claimant alleged that he was a mere creditor of the attachment debtor. T
does not claim to have a title to or a lien on, the attached property which
would entitle him to its possession. [See Weadcock v. Ofilada; 84 Phil ___
(1949)]

Q: Can a temporary restraining order be issued ex-parte? (5%)

A: Yes, but effective for 72 hours only and this is to be issued by the
executive judge of a multiple-sala court or the presiding judge of a single-sala
court and only if the mater is of extreme urgency and the applicant will suffer
grave injustice and irreparable injury. (Rule 58, Sec. 5, 2nd par.)

Q: In an action for a sum of money, P obtained a writ of attachment and
levied it on D's properties. D filed an answer, in which he asserted
prescription of P's alleged cause of action as one of his affirmative
defenses and on which he sought a preliminary hearing. D also pleaded
a counterclaim where he prayed for damages arising from the
attachment which he claimed was maliciously obtained and
implemented. After the hearing on D's affirmative defense of
prescription the court found that P's cause of action had already
prescribed and therefore ordered the dismissal of the complaint as well
as D's counterclaim which it said could not remain for independent
adjudication. With the dismissal of the counterclaim, can D still recover
damages against the attachment bond for illegal attachment? (10%)


Preliminary Injunction

Q. P bought a house and lot from X, with a balance remaining on the
purchase price but which balance was secured by a mortgage on the
premises. Then, P sued D, an occupant, in the RTC to recover
possession of the house and lot. After due trial, the RTC rendered
judgment for P and ordered D to vacate and deliver the premises to P.
A writ of execution was, in due course, issued for this judgment.
However, before the writ of execution could be carried out, D, claiming
to be an assignee of X's mortgage, filed in another RTC a suit for
foreclosure of the mortgage, with prayer for preliminary injunction.
Should D be granted a preliminary injunction to enjoin his eviction
under the judgment in the first case? (1994 Midterm Exam V)

A. No. P, as the prevailing party in the first case, is entitled as a matter of
right to a writ of execution. Moreover, D does not have a clear right in esse
which deserves protection by an injunction; he claims the right to foreclose
the mortgage by virtue of a supposed assignment to him by X of the balance
of the purchase price secured by a mortgage on the premises. D's right to foe
close has yet to be established and an injunction is not the instrument to do
this. Ulang v. CA, 225 SCRA 637 (2nd Div., 1993).

Q. In a petition for relief in the RTC against an RTC money judgment
(already final and executory), the RTC issued a preliminary injunction
enjoining the execution of the decision. After due hearing, the RTC
dismissed the petition for relief, and petitioner appealed the dismissal
order to the CA. While the appeal is pending, may the judgment sought
to be set aside on the petition for relief be executed? (5%) [1997
Midterms VIIa]

A. No. The preliminary injunction has not been dissolved and is still in force.
Rule 39, Sec. 4 refers to an injunction as a principal remedy and not to a
preliminary injunction issued as an auxiliary remedy which auxiliary remedies
are not dissolved unless the trial court expressly says so. For the trial court
to have dissolved the preliminary injunction here would have mooted the
appeal. (Dimaunahan v Arnas, 74 Phil. 155)


PROVISIONAL REMEDIES (Preliminary injunction)
PLEADINGS (Counterclaim and cross-claim)

Q. In an action by P against D for prohibition, P obtained a writ of
preliminary injunction against D. On certiorari to the SC, the writ of
preliminary injunction was nullified on the ground that the petition was
premature because P had not exhausted his administrative remedies.
Taking his cue from the SC decision, D filed a motion to dismiss the
complaint for failure to state a cause of action and the motion was
granted. After this dismissal order became final, D filed an action
against P to recover damages resulting from the issuance of the
preliminary injunction in the first case. P now moves to dismiss the
damage action on the ground that it is barred for not having been set up
as a compulsory counterclaim in the prohibition case. Rule on P's
motion to dismiss. (1996 Midterm Exam III)

A. Motion may be tolerably argued both ways. Arguable that D had waived
his claim for damages resulting from the unlawfully issued injunction by
having moved to dismiss the complaint in which he had a compulsory
counterclaim. (See Int'l Container Services, Inc. v. CA, 214 SCRA 456 [First
Div., 1992]). It is also arguable however that the case is assimilable to one
where the principal case was dismissed for lack of jurisdiction in which no
claim for damages could have been presented in that case so that this
independent action for damages for the illegal injunction is not abated (See
Santos v. CA, 95 Phil. 360 (1954])


Q. Suppose the main case is dismissed by judgment after trial and
this judgment is appealed, what happens pending appeal to a writ of
preliminary injunction issued by the trial court while the case was
pending with it? (10%)

A. The preliminary injunction is not ipso facto dissolved if the judgment
of dismissal is silent on the matter as, otherwise, the case will become moot
despite the appeal. So, the preliminary injunction is dissolved only if the court
expressly says so. [Dimaunahan v. Aranas; 74 Phil 455, 460 (1943)]. The
rule is different in case of a permanent injunction, in which case R39, S4
expressly providing that the judgment granting, dissolving, or denying the
injunction is immediately operative.

Q. Can the MTC issue a writ of preliminary mandatory injunction in
an action of unlawful detainer? (5%)

A. No. Art. 359, NCC authorizes an MTC to issue a writ of preliminary
mandatory injunction in forcible entry cases only.

Q. P, a resident of San Juan, Metro Manila, entered into an
agreement with D, a resident of Quezon City, respecting a piggery
business in Marilao, Bulacan. They quarreled over the management and
control of the business, and so P sued D in RTC-QC which issued a
preliminary injunction restraining D, his nominees, and all persons
claiming under him from entering the piggery compound in Marilao,
Bulacan. D moved to lift the preliminary injunction on the ground that it
is sought to be enforced beyond the territorial jurisdiction of the RTC-
QC. Resolve the motion.

A. Motion to lift denied. An injunction to restrain acts committed outside
the territorial jurisdiction of the issuing court is valid where the principal
business addresses of the parties and the decisions on the acts to be
restrained are located and originated within the court's jurisdiction. (Embassy
Farms, Inc. v CA, 188 SCRA [1990], 2nd Div.)


XI. DISCOVERY

Q: "work product rule"

A: The rule which immunizes from discovery the notes, impressionss and
other work product of the lawyer gathered or obtained in preparation for
litigation.


Depositions

Q. (a) Can a party take the deposition of a person without any showing
that the deponent will be unavailable as a witness at the trial? (b) If so,
can such deposition be used in evidence? (1994 Midterm Exam IVab)

A. (a) Yes. Availability of the deponent as a witness at the trial will affect the
party's right to use the deposition - not his right to take it. See Dasmarinas
Garments, Inc. v. Reyes, 225 SCRA 822[2nd Div.], 1993). (b) Yes, under the
conditions and for the limited purposes stated in Section 4, Rule 24.

Q. Suppose P had introduced in evidence a pre-trial deposition of D's
general manager which contained a statement that the company had no
budget for the current year for repair of their vehicles, may P thereafter
(i.e., after the general manager had testified for D) introduce evidence
that the general manager's reputation for truth and veracity is bad?
[1999 UP Barops I]

A. Yes, by using the deposition as substantive evidence, P had not thereby
made the general manager his own witness (Rule 24, Sec. 8). Hence, the
impeachment of D's witness by reputation evidence is still open to P.
Moreover, by presenting the general manager's deposition, P in effect made
this general manager an adverse-party witness under Rule 132, Sec. 12 and
so he may be impeached by P as if he was called by D.

Q. Since a deposition officer cannot rule on objections to evidence,
what would be the point of raising any objection to evidence at the
deposition-taking? (5%) [1997 Midterms VIIb]

A. See Rule 24, Sec. 29 (e).





Request for admission

Q. Where the defendant fails to answer a request for admission served
on him by plaintiff asking for admission of all the material allegations of
the complaint, what is the plaintiff's best procedural recourse? (5%)
[1999 Midterm VI]

A. He should file a motion for summary judgment because the material
allegations of the complaint are not disputed. (See Allied _______Business
Development Co., ______vs. CA, GR No. 11843__, Dec. 4, 199_)

Q. May discovery still be resorted to by a party litigant even after
the promulgation of final and executory judgment? (5%)

A. Yes. See R39, Sections 38-40.

Q. Does a party litigant enjoy any discovery rights after the
promulgation of final and executory judgment? (5%)

A. Yes. See R39 Secs. 38-40.

Q. Where the defendant fails to answer a request for admission
served on him by plaintiff asking for admission of all the material
allegations of the complaint, what is plaintiff's best procedural
recourse?

A. He should file a motion for summary judgment because the material
allegations of the complaint are not disputed. (See Allied... Business
Development Co. v CA, GR No. 118436)

Q. The court issued a subpoena duces tecum ordering the
defendant "to bring with her whatever document is in her possession
relative to this case." Is it possible to quash this subpoena duces
tecum and, If so, on what grounds?

A. Yes. On 2 grounds, to wit: 1) it is unreasonable and oppressive as it
requires the production of numerous books, documents or things that are not
properly described or identified; or, 2) if the person in whose behalf the
subpoena is issued fails to advance the reasonable cost of the production
thereof. (Rule 21, Sec 4; Uy v Aleonar, 94 O.G. p 1971 [ 1993; CA ])





XII. PRE-TRIAL

Q. The complaint was dismissed for failure of the plaintiff to appear at
the pre-trial despite due notice. May he re-file the complaint? (5%) [1997
Midterms VIb]

A. No. The dismissal for non-suit is effectively for failure to prosecute and is
therefore an adjudication on the merits under Section 3 of Rule 17.



XIII. TRIAL


Subpoena

Q. May a court order the immediate arrest of a witness who has failed to
obey a subpoena in a case pending with it? (1996 Midterm Exam Xb)

A. No. Failure to obey subpoena constitutes indirect not direct contempt for
which the alleged contemnor could not be adjudged guilty without hearing.
Properly, the court should first issue an order requiring the alleged contemnor
to show cause why he should not be punished for disobedience to its process
in order to give him a chance to explain his failure to appear as witness. See
Gardones v. Delgado, 58 SCRA 581 (1974).

Q. How can you, as a party to a civil action, access a document under
the control of a non-party? [1999 UP Barops VII]

A. By subpoena duces tecum.


Demurrer To Evidence

Q. Action to collect on a promissory note. At the trial, plaintiff
presented the note through its records custodian who had no personal
knowledge of the transaction. After plaintiff rested, the defendant filed
a demurrer to evidence on the ground that plaintiff's evidence was
merely hearsay. The trial court granted the demurrer. On appeal,
however, the CA reversed and remanded the case to the trial court for
further proceedings. Did the CA act correctly? (10%) [2000 Finals I]

A. No. CA should have rendered judgment on the basis of the evidence
submitted by petitioner. The evidence was sufficient to support plaintiff's
claim. Even if plaintiff's witness had no personal knowledge of the
promissory note, this note is still admissible to prove its existence and its
tenor as these facts are of independent relevance. Under section 1, Rule 33,
defendant is deemed to have already waived his right to present evidence as,
by filing a demurrer, he is deemed to have elected to stand on the
insufficiency of plaintiff's evidence. (Radiowealth Finance co. v. Del Rosario,
GR No. 138739, July 6, 2000)

Q. May a court dismiss an action for failure of plaintiff's lawyer to
appear at the trial despite due notice? (5%)



XIV. JUDGMENTS

Q. When is a judgment of a trial court considered to have been
promulgated? (5%) [1995 Finals IIa]

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


Judgment On The Merits

Q. In a suit on promissory notes which stipulated that the interest due
shall be compounded quarterly, the RTC rendered judgment ordering D
to pay P the notes with 18% interest per annum. After the judgment
became final and executory, D tendered to P an amount in full payment
of the judgment debt but P rejected this tender on the ground that per
Ps computation the judgment debt was much more. The difference
between the two amounts arises from the disagreement as to whether
the judgment allowed quarterly compounding of interest; P said that it
did, but D claimed it did not. D then consigned the amount with the trial
court under a motion praying for a ruling that the judgment did not
allow quarterly compounding of interest, but P opposed the motion on
the ground that the interest due must be compounded on a quarterly
basis since such is the intention of the court and is necessarily implied
from the findings of fact in the body of the decision. The trial court
issued an order denying the Consignation and Motion filed by D and
holding that P was entitled to compound interest quarterly even if the
judgment did not provide for such compounding in its dispositive
portion, the reason being that such ambiguity is clarified in the body of
the decision. Is this order valid? (1994 Midterm Exam X)

A. No. The settled doctrine is that if there is a conflict between the body of
the decision and the dispositive part, the latter should prevail. It is only when
there is an ambiguity in the dispositive part that the court may resort to the
body of the decision to clarify the ambiguity. But this doctrine applies only
when there is a conflict between the body and the dispositive portion. Here,
however, the dispositive part is of the judgment is clear and unambiguous, so
that there is nothing to interpret or clarify even if it is in conflict with the
statements in the body. In such a case the rule is clear, it is the dispositive
part that should prevail. The judgment here is clear for the payment of
interest at 18% per annum; it cannot be taken to be an interest to be
compounded quarterly. What actually happened may be an oversight on the
part of the trial judge in not including in the judgment a provision for the
payment of compound interest on a quarterly basis. There is a parallel
neglect on the part of counsel for P in not seeking a modification of the
judgment before it became final and executory. The error cannot be cured by
amendment; it is not a mere clerical error but a judicial error. Garcia v. Amin
90 O.G. 2095 (CA, 1990)


Nunc Pro Tunc Judgments

Q. Service of summons was made by a PNP policeman in the
municipality where the defendant resides. At plaintiff's behest, an
affidavit was executed by the former presiding judge of the issuing
court that he had issued an order authorizing service of summons by
the policeman but the court record showed no such approval. So,
plaintiff, submitting this affidavit to the court, moves for the issuance of
an order nunc pro tunc stating the requisite authority for service of
summons by this policeman. Should this motion be granted? (1996
Midterm Exam IIb)

A. No. A nunc pro tunc entry is an entry made now of something which was
previously done to have the effect as of the former date. Without some
visible data in the record of the issuance of such an order, a nunc pro tunc
entry is not justified. (lichauco v. Tan Pho, 51 Phil. 662 [1923])


Judgments By Compromise And Upon Confession

Q. On 01 July 1985, the RTC issued judgment, which was duly served on
the parties one week later, based on compromise between P and D
Corporation under which D was supposed to make payments to P. On
14 February 1992, due to D's alleged failure to make some of the
payment required under the compromise judgment, P filed an action in
the same RTC to compel D to make these payments. In answering the
complaint, D admitted the promulgation of the compromise judgment
but alleged that it was entered into by its then President without the
requisite authority of the stockholders and that it was therefore ultra
vires. Can this defense still be entertained? (1996 Midterm Exam VIa)

A. No more. The compromise judgment was immediately final and executory
and its validity cannot be assailed collaterally unless the ground of attack is
lack of jurisdiction or an irregularity apparent on the face of the record or
because it is vitiated by fraud. (Cadano v. Cadano, 49 SCRA 33 [1973])

Q. Can a party move to set aside a compromise judgment? If so, how
and on what grounds? [1996 Finals V]

A. Only thru a Rule 38 petition for relief and on the grounds stated in this
Rule. A Rule 37 motion, which presupposes a non-final judgment, is not
available because a compromise judgment is immediately final and
executory. (Samonte v. Samonte, 64 SCRA 524 [1975]).


Declaratory Judgments

Q. May a third-party complaint be filed in an action for declaratory
relief? [1996 Finals IV]

A. No. A petition for declaratory relief seeks no positive or affirmative, much
less any material, relief beyond the adjudication of the legal rights which are
subject of the controversy between the parties. But in a third-party complaint,
the defendant or third-party plaintiff is supposed to seek contribution,
indemnity, subrogation or any other relief from the third-party defendant in
respect to the claim of the plaintiff against him. (Commissioner of Customs
vs. Cloribel, 77 SCRA 459 [1977]).

Q. Both plaintiff and defendant were duly served copies of the
decision on July 1. Neither party appeals or files a motion for new trial
or reconsideration. When does this decision become final?

A. Upon the date of entry of this decision in the book of entries of
judgments. (Rule 36, sec 2)

Q. A railroad collision injures 50 passengers all of whom bring
separate actions against the railroad. After the railroad wins the first 25
suits, a plaintiff wins in suit 26. Should not the doctrine of "collateral
estoppel" be applied to allow plaintiffs 27 through 50 automatically to
recover?
A. No. It would be unfair to the defendant railroad since suit 26 may
have been for small or nominal damages only so that the railroad had little
incentive to defend vigorously. Besides, the judgment relied upon in suit 26
as a basis for the estoppel may itself be inconsistent with one or more
previous judgments in favor of the defendant.

Q. May judgment be rendered in the alternative?

A. Yes. E.g. in a replevin case, the judgment is in the alternative for the
delivery of the property or for its value in case delivery cannot be made.
(Rule 60, sec 9)


XV. REVIEW AND CORRECTION OF TRIAL COURT ERRORS


Q. Action for breach of contract by P against D in the RTC. On D's
motion, the initial trial was postponed 5 times. On the 6th resetting of
the case for trial, neither defendant nor his lawyer appeared although a
messenger of defendant's lawyer filed then and there a motion for
postponement by D's lawyer on the ground that he has another hearing
on the same date and time in an out-of-town court. The court denied the
motion for postponement and allowed P to present his evidence ex-
parte and considered D to have waived his right to present evidence.
Thereafter, the court considered the case submitted for decision. About
two months later, the court rendered a decision in favor of P and
against D. D then filed a petition for certiorari with the Court of Appeals
claiming that the RTC had acted with grave abuse of discretion in
denying his motion for postponement and declaring him as having
waived his right to present evidence. While this petition was pending in
the CA, defendant perfected his appeal from the RTC's decision to the
CA also. P, appearing now as private respondent on the certiorari
petition, moved in the CA for the dismissal of the petition on the ground
that D had lost his right to avail of the remedy of certiorari when he
perfected an appeal from the RTC decision. Resolve P's motion to
dismiss the certiorari petition. (10%)


Q. When is a Motion for Reconsideration of an RTC judgment
considered pro forma, and what is the risk to the movant in filing such a
motion? (5%)

A. If based on R37S1(c), a motion for reconsideration is pro-forma if it does
not point out specifically the findings of conclusions in the judgment which are
not supported by evidence or which are contrary to law, making express
reference to the pertinent evidence or legal provisions. [Alvero v. Dela Rosa;
76 Phil 428, 435]

If a second MR where it is not based on a ground not existing or not available
where 1st MR was made (R37S4; City of Cebu v. Mendoza 62 SCRA 440
(1975)]

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


Extraordinary Remedies (prerogative writs: Certiorari, Prohibition and
Mandamus) as modes of review)
Also PROVISIONAL REMEDIES (Replevin)
Also PARTIES (New/additional parties: Intervention)

Q. P filed a complaint for the recovery of two barges from the
possession of the Philippine Coast Guard seeking the issuance of a writ
of replevin for the purpose. The trial court, after the filing by P of the
requisite bond, issued a writ of replevin for the seizure of the two
barges which in the meanwhile were sold to a third party. Meanwhile, X
filed a motion for intervention, claiming ownership over the two barges
which it allegedly acquired form P in a public auction sale. The trial
court denied X's motion for leave to intervene and ordered the release
of the barges to P. Dissatisfied with this order, X filed a petition for
certiorari in the Court of Appeals contending that the trial court gravely
abused its discretion in denying X's motion for leave to intervene. How
should the Court of Appeals resolve the certiorari petition? (1994
Midterm Exam VI)

A. The Court of Appeals should deny the certiorari petition because other
adequate remedies were available to petitioner; for instance, a motion for
reconsideration of the order for the issuance of writ of replevin, or X could
have filed a third-party claim over the barges under Section 7, Rule 60, or, of
course, X could have instituted the proper action to vindicate its claim to
these barges. But back to the merits of the motion for intervention, the Rules
allow such intervention only where it will not unduly delay or prejudice the
adjudication of the rights of the original parties and where the intervenor's
rights may not be filly protected in a separate proceeding. Here, the barges
had already been sold to a third party and to allow X to intervene in the
replevin suit would merely make the proceedings unnecessarily complicated
and new and unrelated issues on conflicting claims of ownership, authenticity
of documents of title and regularity in the mode of acquisition thereof may be
expected to be raised. (Big Country Ranch Corp. v. CA, 27 SCRA 161 [ 2nd
Div.], 1993)

Q. Suppose the main case is dismissed by judgment after trial and this
judgment is appealed, what happens pending appeal to a writ of
preliminary injunction issued by the trial court while the case was
pending with it? (10%)

A. The preliminary injunction is not ipso facto dissolved if the judgment
of dismissal is silent on the matter as, otherwise, the case will become moot
despite the appeal. So, the preliminary injunction is dissolved only if the court
expressly says so. [Dimaunahan v. Aranas; 74 Phil 455, 460 (1943)]. The
rule is different in case of a permanent injunction, in which case R39, S4
expressly providing that the judgment granting, dissolving, or denying the
injunction is immediately operative.

Q: By sheer coincidence, Atty. Lopez was on the same day, 30 June
1991, served with adverse decisions of the Court of Appeals and the
Regional Trial Court. In each case, he filed a motion for reconsideration
simultaneously on 10 July 1991. He received notices of the denial of his
two motions for reconsideration on 15 August 1991.

If Atty. Lopez decides to appeal in each of the two cases -

(a) What mode of appeal should he pursue in each case?

(b) How would he perfect each appeal?

(c) Within what time should each appeal be perfected? (10%)

A:
(a)
(1) From the Court of Appeals to Supreme Court - appeal by certiorari
under Rule 45.
(2) From the Regional Trial Court to Court of Appeals - ordinary appeal
on questions of fact and law.
(3) From the Regional Trial Court to Supreme Court - appeal by certiorari
on questions of law only.

(b)
(1) From Court of Appeals to Supreme Court, by filing a petition for
review on certiorari with the supreme Court and serving a copy on the
Court of Appeals and the adverse party.
(2) From Regional Trail Court to Court of Appeals by filing a notice of
appeal with Regional Trial Court and serving a copy on the adverse
party.
(3) From Regional Trial Court to Supreme Court, by filing a petition for
review on certiorari with Supreme Court and serving a copy on the
lower court and the adverse party.
(c)
(1) From Court of Appeals to Supreme Court, on or before 30 August
1991, or fifteen days from notice of the denial of the motion for
reconsideration. (Sec. 1 of Rule 45)

Q: On what grounds may the trial court dismiss an appeal taken from its
decision? (5%)

A: On two (2) grounds only, to wit: (a) for having been taken out of time, or
(2) for non-payment of the docket or other lawful fees within the reglementary
period. (Rule 41, Sec. 13, as amended, effective 01 May 2000)

Q: Defendant, who was served the MTC's adverse judgment in an
ejectment case on 01 June 2000, moved on 03 June 2000 for
reconsideration of this adverse decision. The MTC's order denying the
motion for reconsideration was served on defendant on 20 June 2000.
Then, on 27 June 2000, defendant filed a notice of appeal from the
ejectment decision to the RTC. Is the appeal timely filed? (5%)

A: No. The ejectment decision having presumably been rendered by the
MTC under the Revised Rule on Summary Procedure, a motion for
reconsideration is a prohibited pleading. (1991 revised Rule on Summary
Procedure, Sec. 19 [c]). So, the filing of this motion did not suspend or toll
the running of the period for finality of the ejectment decision which thus
became final on 16 June 2000.

Q: Does an appeal from a final judgment of the RTC stay the
enforcement of this judgment? (5%)

A: Yes, unless it is an appeal from a judgment of the RTC in the exercise of
its appellate jurisdiction over a civil case governed by the Revised Rule on
Summary Procedure. (1991 Revised Rule on Summary Procedure, Sec. 21;
Rule 70, Sec. 21)

Q: "Material Data Rule"

A: Rule 41, Sec. 6.

Q: An ejectment complaint was dismissed by the MTC for plaintiff's
alleged failure to establish his pleaded cause of action. On appeal, the
RTC affirmed in a decision which reasoned that defendant-tenant had
not defaulted in the payment of rentals and that the lease had a fixed
term. On reconsideration, the RTC reversed in a decision as follows:
"Considering the grounds for plaintiff-appellant's motion for
reconsideration, the defendant-appellee's opposition and reply to
opposition, the decision of this court is hereby reconsidered, thereby
reversing the decision of the court a quo and instead a decision is now
rendered in favor of plaintiff-appellant and against the defendant-
appellee as pryaed for in plaintiff-appellant's complaint." Is the decision
valid? (5%)

A: No. It does not, contrary to Section 1 of Rule 31 and Section 14 of Article
VIII of the Constitution, state the law and facts on which it is based (Based on
Anasco v. Judge of RTC-Pasig, 88 O.G. 8018 [CA; 1989])

Q. What are the ways by which a final and executory judgment may be
attacked? (5%) [1999 Midterm XIV]

A.
a.) By petition for relief;
b.) By direct action to annul and enjoin the enforcement of the judgment
where the alleged defect is not apparent on its face or from the
recitals contained in the judgment;
c.) By special civil action of certiorari; and
d.) By collateral attack where that challenged judgment is void upon its
face or its nullity is apparent from its own recitals. (See Filinvest
Credit Corp. vs. IAC, 207 SCRA 59 [1st Div., 1992])

Q. Distinguish between a petition for certiorari as a special civil action
and a petition for certiorari as a mode of appeal. [1999 UP Barops XI]

A.
a.) As a mode of appeal it should be filed within 15 days from notice of
the judgment or of denial of the motion for reconsideration filed in due
time. (Rule 45, Sec. 2). As special civil action, it may be filed within
60 days from notice of the judgment. (Rule 65, Sec. 4)
b.) The grounds are different. (See Rule 45, Sec. 6 and Rule 65, Sec. 1)

As a mode of appeal, the respondent court need not be made a party to the
petition; as a special civil action, the respondent court should be made a
party to the petition.

Appellate proceedings; review and correction by another court on appeal

Q. Is an order denying a motion for reconsideration of a final and
appealable judgment itself appealable? (1996 Midterm Exam Ib)

A. Arguably not. Otherwise, a party's period to appeal from the final judgment
may be unduly extended whereas the time during which the motion for
reconsideration was pending is supposed to be merely deducted from the
time to appeal, except in the case of a motion for reconsideration of a CA
decision which under Rule 45 completely tolls the time to appeal.

Q. In an action by P against D, the RTC rendered judgment which was
served on P on 01 July 1995 and on D on 05 July 1995. On 20 July 1995,
D filed his notice of appeal from this judgment to the CA, and on the
same date P filed a motion fro reconsideration of the same judgment. Is
P's motion for reconsideration timely? (1996 Midterm Exam IVa)

A. No. The decision had become final in respect to P. The clause "upon the
expiration of the last day to appeal by any party" in Sec. 23 of the Interim
Rules refers to D whose period to appeal has not yet expired, P's period to
appeal having expired on 16 July 1995. (see Abe Industries, Inc. v. CA, 162
SCRA 48 [2nd Div., 1988])

Q. Is there any case where an appeal may be made to the SC by notice
of appeal? (1993 Midterm Exam IVa)

A. No answer

Q. What should the CA do to an appeal by notice of appeal from the
RTC to it when the appellant raises issues of law only, or to an appeal
by notice of appeal from a judgment of the RTC in the exercise of its
appellate jurisdiction? (1993 Midterm Exam IVb)

A. No answer

Q. Is there any decision of the MTC in civil cases which is directly
reviewable by the CA? (1993 Midterm Exam VIa)

A. No answer

Q. In civil cases, where should the appellant pay the appellate court
docket fee and what is the effect of non-payment of such fee? (5%)
[2000 Finals II]

A. The fee should be paid to the clerk of court which rendered the judgment
or final order appealed from (Rule 41, Sec.4). Non-payment of such fee is
ground for dismissal of the appeal by the trial court (Rule 41, Sec. 13, as
amended eff. 1 May 2000) or by the appellate court (Rule 50, sec. 1 [c]).

Q. Can a third-party plaintiff appeal from an order dismissing his third-
party complaint for failure to prosecute? (5%) [1999 Midterm XVII]

A. Only with the court's permission. (Rule 41, Sec. 1[g]. See also Rule 36,
sec. 5)

Q. Can a trial court still act on a motion for execution pending appeal of
its judgment after the appeal from this judgment has already been
perfected? (5%) [1995 Finals IIIb]

A. Yes. So long as the records of the case have not been transmitted to the
appellate court (Echaus v CA, 187 SCRA 672).

Q. In an ejectment case by P against D, the MTC rendered judgment
ordering D to vacate the premises and to pay P rentals. In due course,
D filed his notice of appeal and supersedeas bond, whereupon the MTC
ordered the transmittal of the case records to the RTC. But the RTC
dismissed the appeal upon D's failure to pay the appeal fee within the
reglementary period. Is the dismissal correct? (10%) [1997 Midterms V]

A. No. While Rule 141, Section 8 requires the payment of an appeal fee for
an appeal taken from the MTC to the RTC, the only requirement for taking an
appeal from an RTC judgment under Section 20 of the Interim Rules is the
filing of a notice of appeal. Failure to pay the appellate court's docket fee
within the reglementary period confers a discretionary and not a mandatory
power to dismiss the appeal. (Santos v CA, 253 SCRA 632)

Extraordinary Remedies (Prerogative Writs: Certiorari, Prohibition and
Mandamus) As Modes Of Review

Q. In an action for unlawful detainer by P against D in the MTC,
judgment was rendered against D ordering him to yield the premises to
P. On D's timely appeal to the RTC, the latter found that he had been
unlawfully withholding possession of the premises for more than one
year prior to the filing of the complaint and that therefore the proper
action was accion publiciana and not unlawful detainer, and the RTC
thereby declared the MTC without jurisdiction over the case and
nullified the proceedings therein. Now , P filed a Rule 65 petition for
certiorari with the CA against this RTC decision. How should the CA
resolve the certiorari petition? (1996 Midterm Exam IIa)

A. The CA should dismiss the certiorari petition. There was on the RTC's part
no error of jurisdiction but only error of judgment and appeal was an available
and adequate remedy. (Fernand v. Vasquez, 31 SCRA 288 [1970]).

Q. P filed an action in the CA for mandamus against D and also prayed
for moral and exemplary damages. Does the CA have jurisdiction over
the action? (1993 Midterm Exam VIIIa)

A. No answer

Review and correction by another court in an independent action: direct
attack

Q. P filed an action against D for unlawful detainer with the MTC on the
ground of non-payment of rent. After D filed his answer, and while the
case was still pending, D died. Thereafter, D's heirs continued, without
any formal substitution, with the case and presented their position
paper for the defendant. After due hearing, the MTC rendered judgment,
ordering D's heirs to vacate the premises. After this judgment became
final and executory, D filed an action in the RTC to annul the judgment
on the ground that it was rendered without jurisdiction over D's heirs,
there having been no formal substitution of parties. Is the petition to
annul the MTC decision tenable? (10%) [1996 Midterms IX]

A. No. Jurisdiction over the person was acquired by the voluntary
appearance of D's heirs. At any rate, these heirs, having participated in the
litigation, are already estopped to question the court's jurisdiction over them.
The MTC case was properly continued since the ejectment case is an action
which survives, and the judgment in an ejectment case is binding on the
parties and their successors-in-interest by title subsequent to the
commencement of the action. (Vda. De Salazar v CA, 250 SCRA 305).

Q. D sold a parcel of land to P with a right to repurchase within
three (3) months. Failing to repurchase within the agreed period, P
obtained title in his name and demanded that D vacate the premises.
Since D failed to heed the demand, P filed an action against him for
ejectment and summons was served by substituted service on D's
brother who was then residing in the place. For failure to file an answer,
D was declared in default and adjudged to vacate the premises and to
pay certain rentals. D appealed the decision to the RTC on the ground
that the service of summons was not valid. Thereafter, D filed a notice
of appeal signifying his intention to appeal the judgment to the CA. In
the meanwhile, D filed another action before the Court of Appeals to
annul the RTC judgment in which he again assailed the validity of the
substituted service of summons in the RTC. What should be the ruling
on the petition to annul? (10%) [1997 Midterms II]

A. Dismiss the petition. It is barred by res judicata under Sec. 49(c) of Rule
39. The decision in the ejectment suit had become final because the proper
remedy against the RTC judgment is a petition for review and not an appeal.
(Ybaez v CA, 253 SCRA 540).

Review And Correction By The Trial Court Of Its Own Proceeding:
Motion For Reconsideration Or New Trial
Petition For Relief

Q. Defendant was declared in default by the RTC for failure to file a
responsive pleading and thereafter judgment by default was rendered
against him. This decision by default was served on the defendant on
25 July 1995, and on 01 August 1995 defendant filed a motion to have
this decision reconsidered and set aside and for it to be allowed to file
its answer on the ground that it had already actually paid the obligation
sued upon in the complaint. The RTC denied the motion for
reconsideration and a copy of the denial order was served on defendant
on 27 October 1995. On 04 November 1995, defendant filed with the
RTC a petition for relief from judgment. Comment on the timeliness and
appropriateness of this petition for relief. (10%) [1996 Midterms VI]

A. The petition for relief is improper and premature. Defendant had until 05
November 1995 within which to perfect an appeal, and therefore, the petition
for relief was the wrong remedial recourse at the time. (Oriental Media Inc. v
CA, 250 SCRA 647)

Q. In an action by P against D, the RTC judgment in favor of P was
served on D on 03 May 1999, and on 18 May 1999 D filed a motion for
new trial on the ground of newly discovered evidence. The RTC denied
the motion for new trial in an order which was served on D on 01 July
1999. On the following day, i.e., 02 July 1999, D filed his notice of
appeal. The RTC denied the appeal for having been filed out of time,
and the denial order was served on D on 12 July 1999. D filed on 13
July 1999 in the very same case a petition for relief from judgment on
the ground of accident or excusable neglect. Is the petition for relief the
proper remedy? (10%) [1999 Midterm VII]

A. Yes, if the right to appeal was lost through no fault or neglect of D. But
mandamus to compel the RTC to give due course to the appeal may be a
more appropriate remedy because the right to appeal
__________________lost, D having an extra day, and the_ _____ up
________July 1999 within which to appeal. (Rule 41, Sec. 3, 2nd par. In
relation to Rule 22, Sec. 2)

Q. Suppose in question above, the RTC denies D's petition for relief,
what remedy, if any, is available to D to challenge the order denying the
petition for relief? (5%) [1999 Midterm VIII]

A. Only a Rule 65 petition for certiorari, since an appeal is not available. (Rule
41, sec. _1 [b])

Q. Is a motion for reconsideration which deals with the same issues and
arguments posed and resolved by the trial court in its decision pro
forma? (5%) [1997 Midterms IIIb]

A. Not necessarily. A pleader preparing for a motion for reconsideration
must, of necessity, address the arguments made or accepted by the trial
court in its decision. If a motion for reconsideration may not discuss the
issues passed upon by the court, then the losing party would be confined to
filing only motions for reopening and new trial and that would in effect
eliminate Sec. 1(c) of Rule 37. (Marikina Valley Dev't. Corp. v Flojo, 251
SCRA 87).

Q. Is a motion for reconsideration which deals with the same issues and
arguments treated in the movant's memorandum and already
considered and resolved by the trial court in its decision pro forma?
(10%) [1996 Midterms V]

A. Not necessarily. A motion for reconsideration has to "point out specifically
the findings and conclusions of the judgment which are not supported by the
evidence or which are contrary to law. Since one of the ends of a motion for
reconsideration is to convince the court that its ruling is erroneous and
improper, contrary to law or the evidence, the movant has to dwell of
necessity on the issues passed upon by the court. If movant cannot discuss
these issues, he would be confined to filing only motions for reopening and
new trial. A reasonable application of the pro forma doctrine relating to
motions for reconsideration is called for because this doctrine impacts on the
right to appeal, an important and valuable right (Marikina Valley Dev't. Corp v
Flojo, GR 11081, 08 December 1995).

Q. RTC-Manila Branch 50 rendered a default judgment against
defendant in Civil Case No. 123456. After this decision became final,
RTC-Manila granted plaintiff's motion for execution. In the meanwhile,
defendant filed in the RTC-Manila Branch 12, another case-Civil case
123789-which was a petition for relief from Branch 50's judgment in
Civil case No. 123456. RTC-Manila Branch 12 motu proprio dismissed
the petition for relief for lack of jurisdiction, but defendant appealed the
dismissal order to the CA. At the same time defendant moved in Branch
50 to quash the execution writ there issued on the ground that the
default judgment was still reviewable under Rule 41, Sec. 2 on
defendant's appeal from the order denying his petition for relief.
Evaluate -

a. the correctness of Branch 12's dismissal order and of defendant's
appeal from this order.

b. The merits of defendant's motion in Branch 50 to quash the execution
writ. (20%) [1996 Midterms I]

A.
a. Branch 12's dismissal is correct. Defendant did not comply with Rule 41,
Sec. 2. He did not file his petition for relief in the same case but in another
case. Branch 12 cannot take cognizance of the petition; only Branch 50
could do so.
Defendant's appeal to the CA was wrong. It should've been to the SC
through a petition for review on certiorari in accordance with the Judiciary Act
of 1948 as amended by RA 5440 and Sec. 25 of the Interim Rules.

Defendant's motion to quash Branch 50's execution should be denied.
Branch 50's final judgment could be executed despite D's appeal from the
order denying his petition for relief. No preliminary injunction had been
issued pursuant to Rule 38, Section 5. Rule 41, Section 2, giving the
appellate court in an appeal from an order denying a Rule 38 petition the
power to review the judgment on the merits, does not give the appellate court
the power to reverse or modify such power on the merits. Such a review of
the judgment on the merits merely enables the appellate court to determine
not only the existence of any of the grounds-FAME-but also the merits of
petitioner's cause of action or defense. (Service Specialists v Sheriff, 145
SCRA 139).

Q. Plaintiff filed an action in the MTC. On defendant's motion, the
MTC dismissed the case for lack of jurisdiction. Plaintiff appealed to
the RTC. The RTC agreeing that the MTC did not have jurisdiction over
the case, proceeded, over the defendant's objection, to try the case on
the merits and thereafter gave judgment for the plaintiff. Did the RTC
act correctly? (10%)

A. No. The RTC should have simply ruled on whether the MTC's order
of dismissal was valid or not. Following R40S10, if the RTC found that the
MTC had no jurisdiction, all it had to do was to affirm the judgment of the
MTC dismissing the complaint. If the RTC found the MTC to have had
jurisdiction, then the RTC should have remanded the case to the MTC for
proper hearing. R40S11 does not apply here because the MTC did not try
the case on the merits. Besides, defendant objected to the RTC's trying of
the case. [The problem is modified from the facts of a 1975 CA decision in
Castro v. De Guzman 73 OG 9623 (1977)] See new Rules R40 S8.

Q. In an action by P against D, the RT judgment in favor of P was
served on D on 03 May 1999, and on 18 May 1999 D filed a motion for
new trial on the ground of newly-discovered evidence. The RTC denied
the motion for new trial in an order which was served on D on 01 July
1999. On the following day, i.e. 02 July 1999, D filed his notice of
appeal. The RTC denied the appeal for having been filed out of time,
and the denial order was served on D on 12 July 1999. D filed on 13
July 1999 in the very same case a petition for relief from judgment on
the ground of accident or excusable neglect. Is the petition for relief the
proper remedy?

A. Yes. If the right to appeal was lost through no fault or neglect of P.
But mandamus to compel the TC to give due course to the appeal may be the
more appropriate remedy because the right to appeal was not really lost, D
having an extra day, and therefore up to ... July 1999 within which to appeal.
(Rule 41, sec 3, par 2 in relation to Rule 22, Sec 2)

Q. Suppose that in problem No. II above, the RTC denies D's
petition for relief, what remedy, if any, is available to D to challenge the
order denying the petition for relief?

A. Only a Rule 65 petition for certiorari, since an appeal is not available.
(Rule 41, Sec 1[b])

Q. What are the ways by which a final and executory judgment
may be attacked?

1) By petition for relief
2) By direct action to annul and enjoin the enforcement of the judgment
where the alleged defect is not apparent on its face or from the recitals
contained in the judgment.
3) By a special civil action of certiorari; and
4) By collateral attack where the challenged judgment is void upon its face or
its nullity is apparent from its own recitals. (See Filinvest Credit Corp. v IAC,
207 SCRA 59 [1st Div., 1992])

Q. Can the third-party plaintiff appeal from an order dismissing his
third-party complaint for failure to prosecute?

A. Only with the court's permission. (Rule 41, Sec 1[g], See also Rule
36, Sec 5).

Q. P brought an action in the RTC to annul a judgment of an MTC in
what was thought to be a mere unlawful detainer action but actually was
one for rescission and therefore not capable of pecuniary estimation.
Defendant moved to dismiss the motion on the ground that plaintiff had
not exhausted all the ordinary remedies of new trial, appeal, and petition
for relief. Rule on the motion to dismiss.

A. Motion to dismiss denied. The requirement of prior resort to all of
the ordinary remedies of new trial, appeal and petition for relief is contained in
Rule 47, section 1 and refers to motions for the annulment in the CA of
judgments or final orders of the RTC. (1997 Rules of Civil Procedure, Rule
47, sec 1) But there is no requirement that these ordinary remedies be first
exhausted before an action to annul a judgment or final order of an MTC may
be filed in the RTC. (Rule 47, sec 10)

Q. Give at least one example of a civil case (not a special
proceeding) wherein multiple appeals are allowed.

A. Generally, in cases of several and of separate judgments. (Rule 36,
secs 4 & 5). Specifically, in actions for recovery of property with accounting
and for partition. In these cases the judgment for recovery of property is final
and appealable without awaiting the accounting; and an order of partition is
final and appealable without awaiting the actual partition. Hence, the
accounting or the partition may continue pending the appeal and a second
appeal may be taken from the judgment on the accounting or the partition.
(Miranda v CA 71 SCRA 295 [1976]; De Guzman v CA, 74 SCRA 222 [1976])

Q. How final judgment may be set aside?


































XVI. ENFORCEMENT OF JUDGMENTS


Q. Compliant by P against D in the MTC for ejectment. The MTC's
judgment for D was duly appealed to the RTC which reversed the MTC
judgment and ordered D to vacate the premises. This RTC judgment
was received by D's counsel on 16 January 1987. on 23 January 1987, D
filed with the RTC a notice of appeal of its judgment indicating that he
would appeal it to the CA. Acting on this notice of appeal, the RTC on 6
February 1987, ordered the records of the case to be forwarded to the
CA. On the following day, however, and before the records were
actually elevated to the CA, P filed a motion in the RTC for the execution
of its judgment. Resolve the motion for execution. (10%)

A. Motion for execution granted. RTC judgment became final and
executory and its review by the CA could only be had by petition for review
and not by appeal. [BP 129, Sec. 22; marino v. CA 124 SCRA ____ (1983)]

Q: What is the proper recourse of a party aggrieved by an order for
execution pending appeal? (5%)

A: Rule 65 certiorari because such an order is not appealable. (Rule 41, Sec.
1, par. 2 (f))

Q: What is the period of redemption from a real estate mortgage
foreclosure? (10%)

A: It depends. If the foreclosure is judicial, there is only an equity of
redemption and this is 90 to 120 days only from entry of judgment (Rule 68,
Sec. 2) or at the latest until the order of confirmation of the sale (id., Sec. 3).
If foreclosure is extra-judicial, it further depends: one year from registration
of the sale (Act No. 3135, as amended by Act No. 4118) or, under Sec. 47 of
the General Banking Act of 2000 (effective sometime in June 2000), if the
mortgagor is a juridical person and the mortgagee is a bank, the redemption
period is 3 months from the foreclosure sale or until the sale is registered
whichever is earlier.

Q: "Supersedeas Bond"

A: Rule 39, Sec. 3; Rule 70, Sec. 19.

Q: Affidavit of merit

A: Rule 9, Sec. 3 (c); Rule 37, Sec. 2, 2nd par.; Rule 38, Sec. 3.


When Execution proper

Q. Action in the municipal trial court for unlawful detainer was decided
upon a compromise of the parties. The judgment allowed the
defendant-lessee to pay his back rentals in installments, with the
provision that in case of failure of defendant to pay any single
installment an immediate execution shall issue upon plaintiff's motion.
For defendant's failure to pay rentals which accrued after the judgment,
plaintiff moved for a writ of execution, and this motion was granted by
the court which directed defendant's ejectment form the premises. Is
the writ of execution valid? (1994 Midterm Exam III)

A. No. It does not conform with the judgment - which was for payment of
back rentals only and not of future rentals. Such non-conforming writ is a
nullity. And so would the judgment have been a nullity if it was for the
payment of future rentals, a suit for such rentals being dismissable outright
for lack of cause of action. Default in the payment of rentals accruing after
the judgment should be the subject of new cause of action to be ventilated in
a new and separate complaint. Otherwise, a judgment would be eternal,
whereas it has a lifetime of 10 years only from its finality. Gamboa's Inc. v.
Court of Appeals, 72 SCRA 131 (1976).

Q. Judgment by the MTC in an ejectment action by P against D ordering
D to yield the promises to P was affirmed by the RTC on appeal to it by
D. The records of the case were then promptly remanded to the MTRC
which, immediately upon receipt of these records, issued on P's ex-
parte motion a writ of execution of the judgment. D then filed a Rule 65
petition for certiorari with the CA seeking to nullify the writ of execution
on the ground that the issuance of the execution writ was prematuer3.
Is D's certiorari petition tenable? (1996 Midterm Exam V)

A. Yes. While the MTC decision is immediately executory under Section 21
of the Revised Rule on Summary Procedure, this decision cannot be
immediately executed before a copy thereof is served on D. Execution of an
appealed judgment can issue, as a matter of right only from the date of
service of the notice provided in Section 11 of Rule 39. (Dy v. CA, 195 SCRA
585 (First Div., 1991)

Q. On 1 March 1993, a decision of the MTC in an unlawful detainer case
was served on both plaintiff and the defendant. On 9 March 1993
defendant filed a notice of appeal. Meanwhile, a motion to amend
decision was filed on 16 March 1993 by the plaintiff. Hence, on 19 April
1993, the MTC rendered an amended decision. Then, on 17 May 1993
plaintiff filed a motion for execution of the amended decision. Should
P's motion for execution be granted? (1993 Midterm Exam VII)

A. No answer


When Execution Proper: Stay Of Execution

Q. In an action for unlawful detainer in the MTC, defendant lessee was
ordered to vacate the leased premises and pay monthly rentals of
P50,000 starting 01 April 1997 until he shall have vacated the premises
and surrendered its possession to plaintiff lessor , and the sum of
P30,000 as attorney's fees. Copy of the decision was served on
defendant lessee on 01 March 1999 and, on the next day, 02 March
1999, defendant filed a notice of appeal to the RTC, so that on 08 March
1999, the MTC transmitted the records of the case to the RTC. On 17
March 1999, the plaintiff lessor moved for execution of the decision in
his favor, alleging that although defendant had filed a notice of appeal
he had not filed a supersedeas bond. Defendant opposed the motion,
claiming that he was prevented from filing a supersedeas bond on time
because the records of the ejectment case were forwarded to the RTC
without waiting for the expiration of his period to appeal and for the
further reason that the MTC did not fix the amount of this bond. Rule on
the motion for execution. (10%) [1999 Midterm XVI]

A. Motion for execution granted. D's failure to file a supersedeas bond is a
ground for the immediate execution of the judgment against him. D should
have filed a supersedeas bond before he perfected his appeal, this appeal
having been perfected as to him upon filing of his notice of appeal. (Rule 41,
Sec. 9) As to the amount of the bond, the MTC did not have to expressly or
specifically fix the amount of the supersedeas bond because this is
equivalent to the amount of rentals, damages and costs stated in the
judgment and this is the rentals of P50,000 a month from 01 April 1997 until
the date of the judgment. (Chua vs. CA, 286 SCRA 437 [1st Div., 1998])


Third-Party Claims

Q. Who may file a "terceria", with whom is it filed and what is the effect
of its filing? [1999 UP Barops II]

A. A "terceria" is a third-party claim under Section 17, Rule 39 and is
filed by a third-party claimant with the officer making the levy and it is an
affidavit of the claimant's title with copy thereof served upon the judgment
creditor. With the filing of this affidavit, the officer is not bound to keep the
property unless the judgment creditor indemnifies the officer against such
claim by an adequate bond.

Q. May a third-party claimant whose property had been levied upon by
the sheriff intervene in the action from which the writ pursuant to which
the levy was made was issued? (5%) [1997 Midterms IXb]

A. If on attachment-yes. If on execution-no, because intervention must be
"before or during a trial."


Execution Of Money Judgments
Execution Of Judgments For Specific Act

Q. Action by P against D in the MTC for unlawful detainer. The parties
executed a compromise agreement, which the MTC approved and
embodied in a judgment, whereby D promised to pay P P10,000.00 on 02
January 1004 and monthly thereafter until 31 May 1995. The
compromise agreement also stipulated that failure on the part of D to
pay three (3) consecutive installments will entitle P to a writ of
execution. Upon D's failure to pay the first three stipulated
installments, P obtained on his motion a writ of execution directing D to
vacate the premises. Is the writ of execution assailable on any ground?
(5%) [1995 Finals Xb]

A. Yes. The writ of execution does not conform to the judgment. D's
obligation under the compromise judgment is purely monetary but the writ of
execution is not for a money judgment as provided in Sec. 15, Rule 39 and
instead in for delivery or restitution of property under Sec. 13, Rule 39
(Abinujar v CA, GR No. 104133, 18 April 1995).

Q. Is a money judgment enforceable by contempt? (5%) [1997 Midterms
VIIIb]

A. No. It is not a special judgment under Rule 39, Sec. 9. But see Rule 39,
Section. 42.

Q. Despite service of the writ of execution of a judgment of ejectment on
defendant, defendant refused to vacate and deliver possession of the
premises. Hence, upon motion of the plaintiff and after hearing of the
parties on the contempt charge, defendant was declared guilty of
indirect contempt. Is the contempt order legally assailable? [1999 UP
Barops IV]

A. Yes, the refusal of the defendant to vacate the leased premises does not
constitute indirect contempt. (Flores vs. Ruiz, 90 SCRA 428 [1979]).
Contempt is not proper in the enforcement of an ordinary judgment as in this
case. The sheriff must enforce the writ of execution by ousting the defendant
from the leased premises and placing the plaintiff in possession. (Rule 39,
Sec. 10[c])

Q. In action by P against D in the RTC, the court rendered judgment
awarding certain amounts to D as moral and exemplary damages and
atty's fees. D Received a copy of the decision on 3 January 1989 while
P received his copy of the decision on 10 January 1989 and filed a
notice of appeal on 16 January 1989 on which same day, the court
issued and order giving due course to P's notice of appeal and directing
that the records be forwarded to the Court of Appeals. On 17 January
1989, D filed a motion for execution pending appeal and this was
granted over P's opposition on the reasoning that D had filed a bond
and the mere filing of a bond is good enough ground for execution
pending appeal. P then filed a petition for certiorari, prohibition and
mandamus with the Court of Appeals wherein he challenged the RTC's
grant of execution pending appeal as an abuse of discretion. Resolve
P's petition. (20%)

A.
1. In the first place, certiorari lies against an order granting immediate
execution where the same is not founded upon good reasons. An
appeal would not be an adequate remedy from such premature
execution. Nor is the filing of a supersedeas bond a plain, speedy
and adequate remedy because the filing of a such bond does not
entitle P to the suspension of execution as a matter of right.
2. The execution pending appeal was timely granted by the RTC because
it was granted before perfection of an appeal. Since an appeal is
perfected upon the expiration of the last to appeal by any party
(Interim Rule 23), this last day is on 25 January 1989, until which day
P had time to appeal. The filing of the motion for execution on 17
January 1989 was, therefore, well within the time before the appeal
was perfected. The giving of "due course" to the appeal was
inconsequential as the notice of appeal does not require any
approval.
3. There was no good reason for the issuance of immediate execution.
The mere posting of a bond cannot by itself be a "good reason";
otherwise, immediate execution of a judgment would become
routinary, the rule rather than the exception. Moreover, awards for
moral and exemplary damages cannot be the subject of execution
pending appeal because these awards are dependent on the
outcome of the main case and remain uncertain and indefinite until
final adjudication. [ ___________ v. CA; 184 SCRA 501 (1990)]

Q. Pursuant to a writ of execution duly issued by the RTC against
D to enforce a 1986 money judgment against him and in favor of P, the
sheriff levied on all the rights and interests of D in a parcel of land
registered in the register of deeds and annotated on the corresponding
title as well as served on D who had been occupying the land
continuously since 1980. X was then issued a new Torrens title in his
name but with the notice of levy in P's favor carried on the back of this
new certificate. So, X brought another action against P, the sheriff and
the register of deeds for the cancellation of the annotation of P's notice
of levy on the ground that this levy was irregular and improper.
Defending against X's action, the defendants alleged the superiority of
the lien created by the prior registration of the levy over the subsequent
sale in X's favor. Decide the case. (10%)


Q. In an action for unlawful detainer in the MTC, defendant lessee
was ordered to vacate the leased premises and pay monthly rentals of
P50,000.00 starting 01 April 1997 until he shall have vacated the
premises and surrendered its possession to plaintiff lessor, and the
sum of P30,000.00 as attorney's fees. Copy of the decision was served
on defendant lessee on 01 March 1999 and, on the next day, 02 March
1999, defendant filed a notice of appeal to the RTC, so that on 08 March
1999, the MTC transmitted the records of the case to the RTC. On 17
March 1999, plaintiff lessor moved for execution of the decision in his
favor, alleging that although defendant had filed a notice of appeal he
had not filed a supersedeas bond. Defendant opposed the motion,
claiming that he was prevented from filing a supersedeas bond on time
because the records of the ejectment case were forwarded to the RTC
without waiting for the expiration of his period to appeal and for the
further reason that the MTC did not fix the amount of this bond. Rule on
the motion for execution.

A. Motion for execution granted. D's failure to file a supersedeas bond
is a grund for the immediate execution of the judgment against him. D should
have filed a supersedeas bond before he perfected his appeal, this appeal
having been perfected as to him upon his filing of his notice of appeal. (Rule
41, Sec 9) As to the amount of the bond, the MTC did not have to expressly
or specifically fix the amount of the supersedeas bond because this is
equivalent to the amount of rentals, damages and costs stated in the
judgment and this is the rentals of P50,000.00 a month from 01 April 1997
until the date of the judgment. (Chua v CA, 286 SCRA 437 [1st Div., 1998]).







XVII. SPECIAL CIVIL ACTIONS


Quo Warranto

Q: Relator

A: Rule 66 Sec. 3


Foreclosure Of Real Estate Mortgage

Q. Mortgagee extrajudicially foreclosed a real estate mortgage bidded
for and purchased the property at the auction sale and obtained a new
TCT in his name after the lapse of one year from the registration of the
certificate of sale which was issued to him at the foreclosure sale.
Mortgagor now brings an action to annul the extrajudicial sale and to
cancel the mortgagee's new TCT on the following grounds:

a.) That the notice of sale was not posted at the place where the mortgaged
property was located;
b.) That no personal notice of the extrajudicial foreclosure was furnished the
mortgagor; and
c.) That the purchase price was grossly inadequate.

Q. Is the plaintiff's complaint well-grounded? (10%) [1999 Midterm
XIX]

A. No. Under Act No. 3135, as amended which is the law governing
extrajudicial foreclosure of real estate mortgages, there is no requirement of
personal notice to the mortgagor, and as far as notice is concerned, it is
enough that it be posted in at least 3 public places of the municipality or city
where the property is situated and it is not required that the notice be posted
at the site of the property itself. The supposed inadequacy of the purchase
price is immaterial since there is a right to redeem and therefore a lower bid
price would make it easier for the property owner to effect the redemption or
sell his right to redeem and thus recover his loss. (See Abrina vs. PNB, 95
O.G. p. 4068 [CA; 1995], citing DBP vs. Vda. De Moll, 43 SCRA 82 [1972])


Forcible Entry And Detainer

Q: May an inferior court grant a writ of preliminary mandatory
injunction in an unlawful detainer case?

A: Yes. See R70 S15.

Q: In an ejectment case, the MTC ordered the defendant to vacate the
leased premises and to pay a monthly rental plus atty's fees. On
appeal, defendant deposited the current rentals with the RTC. But the
RTC granted plaintiff's motion for execution on the ground of
defendant's failure to file a supersedeas bond. Is the order of execution
correct?

A: No. R70 S19 requires a supersedeas bond only if there are rentals in
arrears. The atty's fees need not be covered by a supersedeas bond. [De
Laureano v. Adil; 72 SCRA 148 (1976)]


Q: A and B inherited from their father, C, a parcel of land in 1985. In
1992, D forcibly entered into and took possession of the property. May
A by himself and without including B as his co-plaintiff bring an action
for ejectment against D?

A: Yes. Anyone of the co-owners may bring an action in ejectment. (Art.
487, CC)

Q: Can a MTC award moral and exemplary damages in an unlawful
detainer case?

A: No. The only damages that can be recovered in an unlawful detainer suit
are the fair rental value or the reasonable compensation for the use and
occupation of the real property. Other damages must be claimed in an
ordinary action. [Felisilda v. Villanueva; 139 SCRA 431 (1985)]

Q: Unlawful detainer action by P against D was decided in favor of P by
the MTC. On P's motion, MTC granted execution pending appeal for D's
failure to post a supersedeas bond. D challenged the validity of the
immediate execution for having been issued without any previous
notice to him. Rule on the validity of the order of execution.

A: Order of immediate execution is proper. MTC is not duty-bound to notify
D of immediate enforcement of the appealed decision. It is the prevailing
party moving for execution pending appeal who is obliged to serve a copy of
such motion on the adverse party's counsel. [Delos Santos v. Montesa; 221
SCRA 15 (1993)]

Q: P filed a complaint for unlawful detainer against D in the MTC. In his
complaint, P prayed for judgment ordering D to vacate the leased
premises and to surrender them to P, declaring the residential building
constructed on the lot by D as forfeited in favor of P and adjudging D
liable to pay accrued rentals and P5,000 atty's fees to P. After D filed
his answer, the MTC rendered a judgment on the pleadings granting all
the reliefs prayed for in P's complaint. Is this judgment assailable on
any jurisdictional ground?

A: (No clear answer. Note on pencil says: ownership)

Q. When and under what conditions may a court issue a demolition
order? (5%)

Q. T was leasing his apartment from L at P5,000/month under a written
contract for 1 year. One month before the expiration of the lease, L
served a demand upon T to vacate the premises upon its expiry
because he was going to demolish the building and erect in its place a
new building. T refused to vacate. In consequence, L's building plans
were delayed. So, L brought an action for unlawful detainer against T
and obtained judgment therein directing T to pay him the P5,000
stipulated rental and P500 a day for every day of delay as damages until
he finally vacates the premises plus P10,000 atty's fees. Is the decision
objectionable in any way? (10%)

A. Yes. The award of P500 a day for damages cannot properly be
made in an unlawful detainer action where the only damages recoverable are
those which are caused by the loss of the use and occupation of the property
and not such damages as may be recovered only by the plaintiff if he were
the owner and he cannot be declared as such in an unlawful detainer action.
The award of atty's fees is proper. [See Reyes v. CA; 38 SCRA 138 (1971)]

Q. May a person not in possession of the premises bring an action
for unlawful detainer of these premises? (5%)

A. Yes, as where the action is brought by a vendee or other person
against whom the possession is unlawfully withheld after the expiration of
termination of the right to hold possession. [See Pangilinan v. Aguilar; 43
SCRA 136 (1972)]


Q. Can the MTC issue a writ of preliminary mandatory injunction in an
action of unlawful detainer? (5%)

A. No. Art. 359, NCC authorizes an MTC to issue a writ of preliminary
mandatory injunction in forcible entry cases only.

Q. A is the owner of a parcel of land pending registration in the RTC of
Rizal. He permitted B, a family friend, to construct a small house on the
land and to live therein for a period of two years only. The two-year
period expired on 1 may 1994, but B failed and refused to vacate the
land. Hence, on 15 June 1994, A filed an action against in the RTC of
Rizal for the recovery of possession of the land. B filed a motion to
dismiss the case on the ground that the proper action was for unlawful
detainer and not for recovery of possession inasmuch as the alleged
detainer of the property was for a period of less than one year at the
time the action was commenced. Is the motion well founded? (1994
Midterm Exam Ib)

A. A plenary action to recover possession (accion publiciana) may be filed
even before the expiration of the one-year period from dispossession.
Moreover, if B has a claim of ownership over the land in question, the action
was properly filed in the RTC since the question of possession cannot be
decided without first deciding the question of ownership.

Q. A and B inherited from their father, C, a parcel of land in 1985. In
1993, D forcibly entered into and took possession of the property. May
A by himself and without including B as his co-plaintiff, bring an action
for ejectment against D? (1994 Midterm Exam IIb; 1993 Midterm Exam
VIIIb)

A. Yes, anyone of the co-owners may bring an action in ejectment. (Article
487, Civil Code)

Q. In an action for ejectment by P against D in the MTC, judgment
ordering D to vacate the premises and to pay all accrued and accruing
rentals was served on both parties on 01 July 1995. On 10 July 1995, D
filed a motion for reconsideration of the judgment on the ground that
the MTC had no jurisdiction over the case since the issue of ownership
was inextricably involved in the case and the issue of possession could
not be resolved without resolving this issue of ownership. The MTC
denied D's motion for reconsideration and the denial order was served
on D on 01 September 1995. The next day, 02 September 1995, D filed
his notice of appeal to the RTC from the MTC ejectment decision.

(a) How should the RTC resolve the appeal? (1996 Midterm Exam IX)

A. The RTC should dismiss the appeal. XXXXX (illegible)

(b) Suppose the MTC had motu proprio and without any hearing, dismissed
P's ejectment complaint for lack of jurisdiction, and that it was P instead who
had timely appealed this dismissal order to the RTC, how should the RTC
resolve P's appeal? (1996 Midterm Exam Xa)

A. It may upon appellate review of the dismissal order affirm or reverse it but
in case of reversal the case shall be remanded for further proceedings (Rule
40, Sec. 10).

Q. Action in the MTC for unlawful detainer. Plaintiff rests his right to
possession of the property in dispute upon his claim of ownership,
which claim in turn is based on a purported contract of sale with right to
repurchase admittedly executed by defendant but claimed by him to be
a mere simulation to cloak a mortgage obligation tainted with usury. If
this contract was really a sale subject to repurchase and the repurchase
as, as alleged by plaintiff, not been made within the time stipulated,
plaintiff would already be the owner of the property sold and, as such,
entitled to its possession. On the other hand, if the contract was, as
defendants claim, in reality a mere mortgage, then the defendants would
still be a the owner of the property and could not, therefore, be regarded
as mere lessees. After trial, the MTC dismissed the case for lack of
jurisdiction on the ground that the case involves a question of
ownership. Is the dismissal correct? (1993 Midterm Exam IX)

Q. On 01 April 1999, P filed in the MTC an action for forcible entry
against D alleging that on 15 March 1999, he purchased this parcel but
that on 20 March 1999 but that on 20 March 1999 he found out that D
took possession of this parcel under the pretext that he is the owner
thereof and that D refused to surrender possession of the land despite
demands. D filed his answer denying the material allegations of the
complaint and, by way of special and affirmative defenses, averred that
the MTC has no jurisdiction over the subject matter of the action
because it is not for forcible entry but an accion publiciana and that the
deed of sale under which P claims ownership is a forgery. Does MTC
have jurisdiction over the case? (10%) [1999 Midterm XX]

A. No. For a complaint for forcible entry to fall within the jurisdiction of the
MTC, it must allege plaintiff's prior physical possession of the property as well
as that he was deprived of such possession. But here, P merely alleged that
on 20 March 1999, he found out that D took possession of the parcel of land
and refused to surrender its possession to him; he did not allege that P was
in prior physical possession. Moreover, P's pretended right to the possession
of the disputed property ultimately rests upon his claim of ownership, a claim
based upon a purported contract of sale the genuineness of which is disputed
by D, so that the case, in the final analysis, hinges on a question of
ownership and is therefore not cognizable by the MTC. (See Rimando vs.
Borebor, 95 o.g., p. 911 [CA, 1994])

Q. The MTC rendered judgment in an unlawful detainer case in plaintiff's
favor ordering the defendant to vacate the premises and to pay rentals
in arrears. Defendant duly appealed from this judgment to the RTC but
upon his failure to deposit the requisite supersedeas bond with the
MTC, the MTC issued a writ of execution ordering the execution of the
appealed judgment with respect to the restoration of possession. Was
the writ of execution validly issued? [1999 UP Barops IX ]

A. No. The MTC has no jurisdiction to issue the execution writ. The appeal
has already been perfected. I t is the RTC which should issue the writ of
execution. (Rule 70, Sec. 19)


Contempt

Q. By virtue of an execution of the judgment in an ejectment case,
defendant was successfully ousted from the property in litigation and
plaintiff was lawfully placed in possession thereof. But 7 years later,
defendant re-entered the property and forcibly took over possession.
Plaintiff now moves that defendant be declared in indirect contempt.
Rule on the motion. [1999 UP Barops V]

A. Motion granted. The defendant violated Section 3(b) of Rule 71 when,
after being ousted from the property in litigation and the plaintiff being lawfully
placed in possession, he re-enters the property and forcibly took over
possession.