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CIVIL PROCEDURE

BAR OPSJULY 2008

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CIVIL PROCEDURE• MAJOR SOURCES:

– 1987 CONSITUTION– BP 129, AS AMENDED – REORGANIZATION ACT– RA 7691 – EXPANDING MTC JURISDICTION– RA 7902 AND RA 8246 – CA JURISDICTION– RA 9282 – CTA JURISDICTION– RA 8239 – SANDIGANBAYAN JURISDICTION– RA 8369 – FAMILY COURTS ACT OF 1997– RA 9285 – ADR LAW– RA 7760 – Local Government Code (Secs. 399-422)– Other special laws

– RULES OF COURT

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• MAJOR SOURCES:– JURISPRUDENCE– RULES OF COURT

RULE 1 GENERAL PROVISIONSPART I CIVIL ACTIONS

– RULES 2 TO 39 ORDINARY CIVIL ACTION– RULES 40 TO 56 APPEALS/PROCEDURE

BEFORE CA, SC– RULES 57 TO 61 PROVISIONAL REMEDIES– RULES 62 TO 71 SPECIAL CIVIL ACTIONS

– SC Circulars/Adm Matters– Internal Rules of the CA

CIVIL PROCEDURE

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CIVIL PROCEDURE• MAJOR SOURCES:

– THE REVISED RULES ON SUMMARY PROCEDURE AMENDED BY A.M. NO. 02-11

– INTERIM RULES OF PROCEDURE ON CORPORATE REHABILITATION

– INTERIM RULES OF PROCEDURE GOVERNING INTRA-CORPORATE CONTROVERSIES

– RULES ON ELECTRONIC EVIDENCE AS AMENDED BY A.M. NO. 01-7-01-SC

– RULES INVOLVING PERSONS AND FAMILY LAW:CHILD WITNESS EXAMINATIONADOPTIONDECLARATION OF NULLITY AND ANNULMENTLEGAL SEPARATIONCUSTODY OF MINORS AND HABEAS CORPUS IN

RELATION THERETOPROVISIONAL ORDERS

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• POWER OF JUDICIAL REVIEW– ACTUAL CASE– RIPE FOR ADJUDICATION– STANDING

• DOCTRINE OF PRIMARY JURISDICTION• PRINCIPLE OF HIERARCHY OF COURTS• DOCTRINE OF JUDICIAL STABILITY• RULE ON EQUITY JURISDICTION• RULE ON ADHERENCE OF JURISDICTION

– NON-PAYMENT OF FILING FEES– RETROACTIVE APPLICATION

JURISDICTION

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JURISDICTION• JURISDICTION

– DEFINITION: POWER AND AUTHORITY OF A COURT TO HEAR, TRY AND DECIDE A CASE

– HOW ACQUIRED: FILING OF THE COMPLAINT

– KINDS:SUBJECT MATTER – DETERMINED BY THE

ALLEGATIONS OF THE COMPLAINT AND THE LAW AT THE TIME OF COMMENCEMENT OF THE ACTION

PERSON – VOLUNTARY APPEARANCE OR PROPER SERVICE OF SUMMONS

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JURISDICTION

• EXCLUSIVE VS. CONCURRENT• ORIGINAL VS. APPELLATE• JURISDICTION VS. VENUE• ERRORS OF JUDGMENT (IN THE EXERCISE

OF JURISDICTION) VS. ERRORS OF JURISDICTION (WANT OF JURISDICTION)

• JURISDICTION BY ESTOPPEL

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JURISDICTION• SUPREME COURT

– ORIGINAL JURISDICTION OVER CASES AFFECTING AMBASSADORS, OTHER PUBLIC MINISTERS

AND CONSULS, OTHER PETITIONS FOR CERTIORARI, PROHIBITION, MANDAMUS, QUO WARRANTO AND HABEAS CORPUS

– REVIEW, REVISE, REVERSE, MODIFY OR AFFIRM ON APPEAL OR CERITORARI FINAL JUDGMENTS OR ORDERS OF LOWER COURTS INVOLVING:

CONSTITUTIONALITY OF A TREATY, INTERNATIONAL OR EXECUTIVE AGREEMENT OR LAW, ORDINANCE

LEGALITY OF ANY TAX, IMPOST, ASSESSSMENT OR TOLL OR ANY PENALTY

JURISDICTION OF ANY LOWER COURT CRIMINAL CASES IN WHICH PENALY IS RECLUSION PERPETUA OR

HIGHER ONLY ERROR OR QUESTION OF LAW INVOLVED

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JURISDICTION• COURT OF APPEALS

– ISSUE WRITS OF MANDAMUS, PROHIBITION, CERTIORARI, HABEAS CORPUS AND QUO WARRANTO, WHETHER OR NOT IN AID OF ITS APPELLATE JURISDICTION

– ACTIONS TO ANNUL RTC JUDGMENT

– EXCLUSIVE APPELLATE JURISDICTION OVER FINAL JUDGMENTS, ORDERS OF THE RTC AND QUASI JUDICIAL AGENCIES (WITH EXCEPTIONS)

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• RTCINCAPABLE OF PECUNIARY ESTIMATIONCIVIL ACTIONS AND PROBATE, ABOVE THRESHOLD

AMOUNTSREAL ACTION ASSESSED VALUE ABOVE THRESHOLD

AMOUNTSADMIRALTY MARITIME ABOVE THRESHOLD AMOUNTSALL OTHER CASES IN WHICH DEMAND IS ABOVE

THRESHOLD AMOUNTSDEFAULT JURISDICTIONAPPELLATE JURISDICTION OVER MTC

• SPECIAL COURTS– FAMILY COURTS– COMMERCIAL COURTS

JURISDICTION

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JURISDICTION• EXAMPLES OF ACTIONS INCAPABLE

OF PECUNIARY ESTIMATION THUS UNDER RTC JURISDICTION:

– INTERPLEADER– ANNULMENT OF MTC JUDGMENT– SPECIFIC PERFORMANCE/RESCISSION– DECLARATION OF NULLITY OF DOCUMENT– EXPROPRIATION

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JURISDICTION• MTC

– CIVIL ACTIONS AND PROBATE WHERE PERSONAL PROPERTY/ESTATE DOES NOT EXCEED THRESHOLD AMOUNTS

– FORCIBLE ENTRY AND UNLAWFUL DETAINER– REAL ACTION WHERE ASSESSED VALUE DOES

NOT EXCEED THRESHOLD AMOUNTS THRESHOLD AMOUNTS ARE COMPUTED EXCLUSIVE OF

INTEREST,, ATTORNEY’S FEES, LITIGATION EXPENSES AND COSTDAMAGES OF WHATEVER KIND

EXCLUSION OF DAMAGES OF WHATEVER KIND APPLIES TO WHERE DAMAGES ARE MERELY INCIDENTAL TO OR A CONSEQUENCE OF THE MAIN CAUSE OF ACTION. WHERE THE CLAIM FOR DAMAGES IS THE MAIN CAUSE OF ACTION OR ONE OF THE CAUSES OF ACTION, THE AMOUNT OF SUCH CLAIM SHALL BE CONSIDERED

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KINDS OF ACTIONS• AS TO BASIS (RELATES TO VENUE)

– REAL ACTION AFFECTS TITLE TO OR SEEKS RECOVERY OF POSSESSION OF REAL PROPERTY OR INTEREST THEREIN (PARTITION, CONDEMNATION, FORECLOSURE OF REM)

– PERSONAL ACTION SEEKS RECOVERY OF PERSONAL PROPERTY, AND ALL OTHER ACTIONS (ENFORCEMENT OR RESCISSION OF CONTRACT, RECOVERY OF DAMAGES)

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OTHER KINDS OF REAL ACTIONS• ACCION INTERDICTAL – RECOVERY OF

POSSESSION DE FACTO• ACCION PUBLICIANA – RECOVERY OF

POSSESSION DE JURE• ACCION REINVINDICATORIA – RECOVERY OF

OWNERSHIP• ACCION HIPOTECARIA – FORECLOSURE OF LIEN

OR MORTGAGE• ACCION NEGATORIA – LANDOWNER’S RIGHT TO

DEFEND FREE DOMINION OF TENEMENT UNDER ROMAN LAW

KINDS OF ACTIONS

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VENUE• REAL ACTIONS

– WHERE PROPERTY OR PORTION SITUATED• PERSONAL ACTIONS

– WHERE PLAINTIFF RESIDES OR – WHERE DEFENDANT RESIDES OR IN CASE OF NON-

RESIDENT DEFENDANT WHERE HE MAY BE FOUND• NON-RESIDENT/NOT FOUND IN PHIL AND ACTION

AFFECTS PERSONAL STATUS OF PLAINTIFF, OR ANY PROPERTY OF DEFENDANT IN PHIL– WHERE PLAINTIFF RESIDES OR– WHERE PROPERTY OR PORTION SITUATED OR FOUND

• RULE NOT APPLICABLE– EXCLUSIVE VENUE STIPULATION– SPECIFIC LAW OR RULE APPLIES

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• AS TO OBJECT (RELATES TO SERVICE OF SUMMONS)– IN REM ACTION IS AGAINST ALL WHO MIGHT

BE MINDED TO OBJECT AGAINST RIGHT TO BE ESTABLISHED; BINDS THE WHOLE WORLD OR AGAINST THE THING ITSELF

– QUASI IN REM ACTION IS AGAINST AN INDIVIDUAL BUT SUBJECTS HIS INTERST IN PROPERTY TO OBLIGATION; CONCLUSIVE ONLY BETWEEN THE PARTIES

– IN PERSONAM ACTION ESTABLISHES CLAIM AGAINST A PERSON ON BASIS OF PERSONAL LIABILITY; BINDS HIM ONLY

KINDS OF ACTIONS

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GOVERNED BY THE RULES OF COURT:

• ORDINARY CIVIL ACTION – PARTY SUES ANOTHER FOR ENFORCEMENT OR PROTECTION OF A RIGHT, PREVENTION OR REDRESS OF WRONG

• SPECIAL CIVIL ACTION - CIVIL ACTION SUBJECT TO SPECIFIC RULES

• SPECIAL PROCEEDING – REMEDY BY WHICH PARTY SEEKS TO ESTABLISH STATUS , RIGHT OR PARTICULAR FACT

• CRIMINAL ACTION – PROSECUTION OF A PERSON FOR AN ACT OR OMISSION PUNISHABLE BY LAW

KINDS OF ACTIONS

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• DEFINITION – ACT OR OMISSION BY WHICH A PARTY VIOLATES A RIGHT OF ANOTHER

• REQUISITES:– RIGHT IN FAVOR OF PLAINTIFF– OBLIGATION ON PART OF DEFENDANT TO

RESPECT OR NOT VIOLATE THAT RIGHT– ACT OR OMISSION ON PART OF DEFENDANT

VIOLATING PLAINTIFF’S RIGHT

CAUSE OF ACTION

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CAUSE OF ACTION• SPLITTING A SINGLE CAUSE OF ACTION – FILING

OF ONE SUIT OR A JUDGMENT UPON THE MERITS IS A GROUND TO DISMISS OTHER SUITS BASED ON SAME CAUSE OF ACTION

• JOINDER OF CAUSES OF ACTION:– SHOULD COMPLY WITH JOINDER OF PARTIES– SHALL NOT INCLUDE SPECIAL CIVIL ACTION OR ACTIONS

GOVERNED BY SPECIAL RULES– DIFFERENT VENUES OR JURISDICTIONS, RTC WHERE ONE

CAUSE OF ACTION FALLS WITHIN ITS JURISDICTION AND VENUE LIES THEREIN

– WHERE CLAIMS FOR MONEY, AGGREGATE AMOUNT IS TEST OF JURISDICTION

• MISJOINED CAUSE OF ACTION MAY NOT BE DISMISSED BUT BE SEVERED AND PROCEEDED WITH SEPARATELY

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PARTIES• NATURAL PERSON (INCLUDING A SOLE

PROPRIETOR)

• JURIDICAL PERSON (DOMESTIC OR FOREIGN CORPORATION, PARTNERSHIP, THE STATE)

• ENTITIES AUTHORIZED BY LAW (LABOR ORGANIZATION; ENTITIES WITHOUT LEGAL PERSONALITY SUED AS DEFENDANTS)

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PARTIES• REAL PARTY IN INTEREST – STANDS TO

BENEFIT OR INJURED BY SUIT– INDISPENSABLE PARTY – WITHOUT WHOM NO FINAL

DETERMINATION– NECESSARY PARTY – COMPLETE RELIEF

• JOINDER OF PARTIES– PERMISSIVE (right to relief arises out of same transaction

or series of transactions; common question of law or fact)– MISJOINDER (drop/amend/not dismiss)– NON-JOINDER (necessary party; waiver of claim)– COMPULSORY (indispensable party)– ALTERNATIVE DEFENDANTS (plaintiff uncertain who are

defendants)

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PARTIES• PERSONALITY/CAPACITY TO SUE

– REPRESENTATIVE (principal or beneficiary)– SPOUSE/MINOR (with other spouse/parent or

guardian ad litem)– CLASS SUIT (numerous, common interest, sufficient

number and representative; see Rule 17, Sec. 2)– UNKNOWN (identity or name)– WITHOUT JURIDICAL PERSONALITY (may be sued

under name)– INDIGENT (exempt from filing fees)– OSG (validity of law, treaty, etc)– NEW PARTIES (Rule 6, Sec. 12)

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PARTIES• EVENT-RELATED

– DEATH OF PARTY/DUTY OF COUNSEL (notify court and give name of legal representative)

– DEATH OR SEPARATION OF PUBLIC OFFICER (successor may be substituted)

– PARTY BECOMES INCOMPETENT OR INCAPACITATED (to be assisted by legal guardian or ad litem)

– TRANSFER PENDENTE LITE (notice of lis pendens)

– DEATH OF DEFENDANT BEFORE ENTRY (continue to entry then file claim against the estate)

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PLEADINGS• KINDS:

– COMPLAINT– ANSWER

NEGATIVE DEFENSEAFFIRMATIVE DEFENSE

– COUNTERCLAIMCOMPULSORYPERMISSIVE

– CROSS-CLAIM– THIRD PARTY COMPLAINT– REPLY

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PLEADINGS• PARTS

– CAPTION– BODY

PARAGRAPHS HEADINGS RELIEF DATE

– SIGNATURE (of counsel means he has read the pleading, to the best of his knowledge, information and belief, good ground and not for delay)

– ADDRESS (not post office no.)– VERIFICATION (based on personal knowledge or

authentic records)– CERTIFICATION AGAINST FORUM SHOPPING (for

initiatory pleadings; absence may cause dismissal without prejudice or constitute indirect contempt)

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PLEADINGS• ALLEGATIONS

– DENIALS GENERAL/SPECIFIC

– FORM ULTIMATE FACTS (NOT EVIDENTIARY FACTS) LAW SUPPORTING DEFENSE GENERAL/PARTICULAR

– MALICE, INTENT, KNOWLEDGE, CONDITION OF MIND– FRAUD, MISTAKE

JUDGMENT/OFFICIAL DOCUMENT/CAPACITY– ACTIONABLE DOCUMENT

HOW TO ALLEGE– SUBSTANCE ALLEGED AND COPY ATTACHED– ENTIRE DOCUMENT SET FORTH

HOW TO DENY– UNDER OATH/EXCEPTIONS (NOT A PARTY; INSPECTION REFUSED)

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PLEADINGS• EFFECT OF FAILURE TO PLEAD

– DEFENSES/OBJECTIONSCOMPULSORY COUNTERCLAIM/CROSS-CLAIM NOT

SET UP BARREDNOT PLEADED WAIVED EXCEPT:

– JURISDICTION– LITIS PENDENTIA– RES JUDICATA– PRESCRIPTION

– DEFAULT/REMEDIESMotion to lift/set aside default orderAppeal from default judgmentPetition for reliefPetition for certiorariPetition to annul judgment

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PLEADINGS• AMENDED/SUPPLEMENTAL PLEADINGS

– MATTER OF RIGHT (once, before responsive pleading)– WITH LEAVE OF COURT (substantial)– FORMAL AMENDMENT– AMENDMENT TO CONFORM TO EVIDENCE (at any

time even after judgment)– EFFECT OF AMENDMENT

SUPERSEDES UNINCORPORATED CLAIMS/DEFENSES WAIVED ADMISSIONS SURVIVE

• BILL OF PARTICULARS (before responding, for a more definite and particular allegation of ultimate facts)

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FILING/SERVICE OF PLEADINGS

• PERSONAL SERVICE– PERSONALLY– OFFICE (PERSON IN CHARGE)– RESIDENCE (PERSON OF SUFFICIENT AGE AND

DISCRETION)

• SERVICE BY MAIL– ORDINARY– REGISTERED

• SUBSTITUTED SERVICE – CLERK OF COURT

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• PRIORITIES IN MODES OF SERVICE AND FILING– PERSONAL– WRITTEN EXPLANATION

• PROOF OF FILING– EXISTENCE IN THE RECORD– WRITTEN OR STAMPED RECEIPT– REGISTRY RECEIPT, AFFIDAVIT OF PERSON MAILING

• PROOF OF SERVICE– WRITTEN ADMISSION OR RETURN– AFFIDAVIT OF PERSON MAILING– REGISTRY RECEIPT AND REGISTRY RETURN CARD– UNCLAIMED LETTER

FILING/SERVICE OF PLEADINGS

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SERVICE OF FINAL ORDER/JUDGMENT

• PERSONAL SERVICE (actual delivery)

• BY REGISTERED MAIL (10 days after mailing)

• PUBLICATION (upon party summoned by publication at the expense of prevailing party)

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SUMMONS• SERVICE DEPENDS ON TYPE OF DEFENDANT

– ENTITY WITHOUT JURIDICAL PERSONALITY (see Rule 36, Sec. 6) (upon any of them or person in charge of office)

– PRISONER (by officer having management of jail)– MINOR/INCOMPETENT (upon him, parent or legal

guardian)– DOMESTIC PRIVATE JURIDICAL ENTITY (president,

managing partner, general manager,corporate secretary, treasurer, in house counsel)

– FOREIGN PRIVATE JURIDICAL ENTITY (doing business in Phil, resident agent; government official designated by law; agent)

– PUBLIC CORPORATION (OSG)– IDENTITY OR WHEREABOUTS UNKNOWN (publication)– RESIDENT, BUT TEMPORARILY OUT, OF THE PHILIPPINES

(extraterritorial service)

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SUMMONS• When: EXTRATERRITORIAL SERVICE

– DEFENDANT DOES NOT RESIDE, IS NOT FOUND, IN PHIL AND

– ACTION AFFECTS PERSONAL STATUS; OR,– RELATES TO, SUBJECT IS, PROPERTY IN PHIL, IN

WHICH DEFENDANT HAS INTEREST OR RELIEF IS TO EXCLUDE DEFENDANT THEREFROM; OR,

– PROPERTY OF DEFENDANT HAS BEEN ATTACHED

• How: EXTRATERRITORIAL SERVICE– PERSONAL SERVICE OUT OF THE PHIL; OR– PUBLICATION IN A NEWSPAPER OF GENERAL

CIRCULATION AND– BY REGISTERED MAIL TO LAST KNOWN ADDRESS

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SUMMONS• LEAVE OF COURT NEEDED FOR

EXTRATERRITORIAL SERVICE• PROOF OF SERVICE

– RETURN OF PROCESS SERVER– AFFIDAVIT OF PUBLICATION– AFFIDAVIT OF DEPOSIT

• VOLUNTARY APPEARANCE• MOTION TO DISMISS MAY ALLEGE LACK

OF JURISDICTION OVER PERSON AS WELL AS ANY OTHER GROUND OR GROUNDS TO DISMISS

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MOTIONS• IN GENERAL

– NOT A PLEADING– AN APPLICATION FOR RELIEF– MAY BE SUPPORTED/PROVEN BY AFFIDAVITS– NOTICE OF HEARING (RECEIPT 3 DAYS

BEFORE; DATE NOT MORE THAN 10 DAYS AFTER FILING)

– PROOF OF SERVICE– OMNIBUS MOTION RULE – include all objection

then available otherwise waived– MOTION FOR LEAVE – to file pleading must

attach pleading

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MOTION TO DISMISS• GROUNDS:

– No jurisdiction over person– No jurisdiction over subject matter– Improper venue– Plaintiff has no legal capacity to sue– Litis pendentia– Res judicata– Prescription– Failure to state a cause of action– Claim has been paid, waived, abandoned, or

otherwise extinguished– Claim is unenforceable– Condition precedent not complied with

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MOTION TO DISMISS• LITIS PENDENTIA

– When is there litis pendentia?Identity of parties, or at least such as

representing the same interests in both actionsIdentity of rights asserted and reliefs prayed

for, the reliefs founded on the same factsIdentity in both cases is such that the judgment

that may be rendered in the pending case would regardless of which party is successful amount to res judicata in the other

– Which case will be dismissedPriority in time ruleMore appropriate action rule

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MOTION TO DISMISS• RES JUDICATA

– REQUISITESFORMER JUDGMENT MUST BE FINALRENDERED BY COURT WITH JURISDICTION OVER THE

SUBJECT MATTER AND PARTIESJUDGMENT ON THE MERITSTHERE MUST BE BETWEEN THE FIRST AND SECOND

ACTIONS, IDENTITY OF PARTIES, IDENTITY OF SUBJECT MATTER AND IDENTITY OF CAUSES OF ACTION

WHETHER SAME EVIDENCE WHICH IS NECESSARY TO SUSTAN THE SECOND ACTION WOULD HAVE BEEN SUFFICIENT TO AUTHORIZE A RECOVERY IN THE FIRST EVEN IF THE NATURE OR FORMS OF THE TWO ACTIONS ARE DIFFERENT

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MOTION TO DISMISS• FAILURE TO STATE CAUSE OF ACTION

– REFERS TO INSUFFICIENCY OF ALLEGATIONS IN THE COMPLAINT

– DOES NOT REQIURE EVIDENCE– DIFFERENT FROM LACK OF CAUSE OF ACTION WHICH

REFERS TO INSUFFICIENCY OF FACTUAL BASIS FOR THE ACTION AND MAY BE RAISED ANY TIME AFTER QUESTIONS OF FACT RESOLVED

• LACK OF LEGAL CAPACITY TO SUE– PLAINTIFF IS NOT IN EXERCISE OF HIS CIVIL RIGHTS

NOR THE QUALIFICATION TO APPEAR OR REPRESENT ANYONE

– DIFFERENT FROM LACK OF PERSONALITY TO SUE WHICH REFERS TO NOT BEING A REAL PARTY IN INTEREST (IN WHICH CASE GROUND IS FAILURE TO STATE CAUSE OF ACTION)

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MOTION TO DISMISS• FILE WITHIN PERIOD TO ANSWER, IF

DENIED, BALANCE OF PERIOD BUT NOT LESS THAN 5 DAYS

• COURT RESOLUTION:– DENY MOTION– ORDER AMENDMENT– GRANT MOTION– NOT DEFER RESOLUTION

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MOTION TO DISMISS• DISMISSAL IS APPEALABLE AND BARS

REFILING WHERE GROUND IS:Res judicataPrescriptionClaim is unenforceableClaim has been paid, waived, abandoned or

extinguished

• DISMISSAL WITHOUT PREJUDICE NOT APPEALABLE

• GROUNDS AS AFFIRMATIVE DEFENSESPreliminary hearingWhere dismissal granted, counterclaim may be

pursued in same or separate action

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DISMISSAL OF ACTIONS• NOTICE BY PLAINTIFF

– BEFORE SERVICE OF ANSWER OR MOTION FOR SUMMARY JUDGMENT

– WITHOUT PREJUDICE EXCEPT ONCE PREVIOUSLY DISMISSED

• MOTION OF PLAINTIFF– COUNTERCLAIM MAY BE PROSECUTED IN SAME OR

SEPARATE ACTION– WITHOUT PREJUDICE

• FAULT OF PLAINTIFF– FAILURE TO APPEAR AT THE PRESENTATION OF HIS

EVIDENCE IN CHIEF– FAILURE TO PROSECUTE– FAILURE TO COMPLY WITH RULES/ORDER OF THE COURT– ADJUDICATION UPON THE MERITS

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PRE-TRIAL• SEE A.M. No. 03-1-09-SC, 16 AUGUST 2004

• CONTENTS OF PRE-TRIAL BRIEF

• EFFECT OF FAILURE TO APPEAR AND FAILURE TO FILE PRE-TRIAL BRIEF– SPECIAL POWER OF ATTORNEY– SECRETARY’S CERTIFICATE– BOARD RESOLUTION

• MATTERS TO BE CONSIDERED DURING PRE-TRIAL

• PRE-TRIAL ORDER

• MEDIATION

• JUDICIAL DISPUTE RESOLUTION

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INTERVENTION• WHO CAN INTERVENE

– ONE WHO HAS LEGAL INTEREST IN MATTER, SUCCESS OF EITHER PARTY, INTEREST AGAINST BOTH, IS ADVERSLY AFFECTED BY DISPOSITION

– WILL NOT UNDULY DELAY OR PREJUDICE RIGHTS OF ORIGINAL PARTIES

– INTERVENTION BETTER THAN SEPARATE PROCEEDING

• WHEN IS INTERVENTION PROPER– DURING TRIAL– AFTER JUDGMENT

• HOW TO INTERVENE– BY MOTION– ATTACH PLEADING IN INTERVENTION

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SUBPOENA• KINDS

– AD TESTIFICANDUM– DUCES TECUM

• GROUNDS TO QUASH– UNREASONABLE/OPPRESSIVE– RELEVANCY DOES NOT APPEAR– FAILURE TO ADVANCE REASONABLE COST OF

PRODUCTION– 100 KILOMETERS

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MODES OF DISCOVERY

• DEPOSITIONS– AS TO WHEN

PENDING ACTIONBEFORE ACTION (PETITION TO BE FILED WHERE

EXPECTED ADVERSE PARTY RESIDES)PENDING APPEAL

– KINDSORAL EXAMINATION (SEC. 15)WRITTEN INTERROGATORIES (SEC. 25)

– USE (SECS. 4 and 8)– PROTECTIVE ORDERS (SECS. 16 AND 28)

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MODES OF DISCOVERY• INTERROGATORIES TO PARTIES (Rule 25)

– In writing– Directed to an adverse party– Without leave of court, one set only– Effect of failure to serve means, adverse party may not

be compelled to testify or give deposition pending appeal

• ADMISSION BY ADVERSE PARTY (Rule 26)– By way of request– No need for a notice nor good cause– Effect of failure to serve means negligent party cannot

present evidence on the material or relevant fact at issue within personal knowledge of adverse party

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MODES OF DISCOVERY• PRODUCTION OR INSPECTION OF

DOCUMENTS OR THINGS (RULE 27)– Upon motion for good cause– Includes ocular inspection of a place

• PHYSICAL AND MENTAL EXAMINATION OF PERSONS (RULE 28)– Examined person requesting report waives

confidentiality over other similar reports

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MODES OF DISCOVERY• REFUSAL TO COMPLY WITH MODES OF DISCOVERY

– Refusal to answer question during oral examination or any interrogatory

Examination may be completed or adjourned Secure order to compel answer Person refusing to pay reasonable expenses and attorney’s fees Contempt of court

– Refusal to answer when ordered, to obey order to produce or allow entry, or to submit to examination

Matter deemed established Refusing party prohibited from introducing evidence Strike out pleadings Arrest (except for refusal to be examined)

– Refusal to admit/failure to attend deposition, serve answers Strike out pleadings Dismiss action Render default judgment Pay reasonable expenses and attorney’s fees

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TRIAL• IN GENERAL

– To postpone submit affidavit of materiality or relevance of evidence and due diligence in procuring it; or affidavit that presence of party or counsel indispensable and character of illness

– Order of trial– Issues limited to those in pre-trial order– Agreed statement of facts in lieu of presentation of

evidence– In default or upon agreement, delegation of reception of

evidence to clerk of court (without power to rule on objection or admissibility)

• CONSOLIDATION OR SEVERANCE– Common question of law or fact consolidate or have joint

hearing– For convenience/avoid prejudice, separate trial

• TRIAL BY COMMISSIONER (Rule 32)

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ACCELERATED PROCEEDINGS• DEMURRER TO EVIDENCE

– AFTER PLAINTIFF HAS COMPLETED EVIDENCE– FACTS AND LAW SHOW NO RIGHT– IF MOTION GRANTED BUT REVERSED ON

APPEAL, DEFENDANT WILL HAVE NO RIGHT TO PRESENT EVIDENCE

• JUDGMENT ON THE PLEADINGS– ANSWER FAILS TO TENDER AN ISSUE– DEFENDANT ADMITS MATERIAL ALLEGATIONS– NOT AVAILABLE IN DECLARATION OF

NULLITY, ANNULMENT, OF MARRIAGE, LEGAL SEPARATION

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ACCELERATED PROCEEDINGS• SUMMARY JUDGMENT

– EXCEPT TO DAMAGES, THERE IS NO GENUINE ISSUE AS TO ANY MATERIAL FACT

– MOVING PARTY ENTITLED TO A JUDGMENT AS A MATTER OF LAW

– MOVING PARTY TO SUBMIT AFFIDAVITS, DEPOSITIONS OR ADMISSIONS

– WHERE SUMMARY JUDGMENT ONLY PARTIAL, COURT TO ASCERTAIN FACTS CONTROVERTED IN GOOD FAITH AND DIRECT FURTHER PROCEEDINGS

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JUDGMENTS, FINAL ORDERS, ENTRY

• RENDITION/ENTRY

• SEVERAL JUDGMENTS• SEPARATE JUDGMENTS• JUDGMENT FOR OR AGAINST ONE OR

MORE OF SEVERAL PARTIES

• JUDGMENT AGAINST ENTITY WITHOUT JURIDICAL PERSONALITY

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• EFFECT OF DOMESTIC JUDGMENT

– AGAINST A SPECIFIC THING, CONCLUSIVE UPON TITLE TO THING

– PROBATE OF WILL, CONCLUSIVE AS TO THE WILL

– STATUS OF PERSON, CONCLUSIVE AS TO STATUS

JUDGMENTS, FINAL ORDERS, ENTRY

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• RES JUDICATA

– BAR BY PRIOR JUDGMENT: SAME PARTIES, SAME CAUSE OF ACTION, CONCLUSIVE BETWEEN THE SAME PARTIES

– CONCLUSIVENESS OF JUDGMENT: SAME PARTIES BUT DIFFERENT CAUSES OF ACTION, CONCLUSIVE ONLY AS TO ISSUE ADJUDGED

JUDGMENTS, FINAL ORDERS, ENTRY

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• EFFECT OF FOREIGN JUDGMENT– UPON SPECIFIC THING, CONCLUSIVE UPON

TITLE TO THE THING– AGAINST A SPECIFIC PERSON, PRESUMPTIVE

EVIDENCE OF A RIGHT AS BETWEEN THE PARTIES AND THEIR SUCCESSORS IN INTEREST BY SUBSEQUENT TITLE

– MAY BE REPELLED BY EVIDENCE OFWANT OF JURISDICTIONWANT OF NOTICECOLLUSIONFRAUDCLEAR MISTAKE OF LAW OR FACT

JUDGMENTS, FINAL ORDERS, ENTRY

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POST JUDGMENT REMEDIES

• MOTION FOR NEW TRIAL• MOTION FOR RECONSIDEARTION• PETITION FOR RELIEF FROM

JUDGMENT• EXECUTION AND SATISFACTION• APPEALS• ANNULMENT OF JUDGMENT

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POST JUDGMENT REMEDIES• MOTION FOR NEW TRIAL

– GROUNDS FAME NEWLY DISCOVERED EVIDENCE

– FORMMOTION WITH AFFIDAVIT OF MERITSMOTION WITH AFFIDAVIT OF WITNESS OR DULY

AUTHENTICATED DOCUMENT– ACTION

SET ASIDE JUDGMENT AND GRANT NEW TRIALDENY MOTION

– SECOND MOTION ALLOWED– ORDER DENYING MOTION NOT APPEALABLE

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POST JUDGMENT REMEDIES• MOTION FOR RECONSIDERATION

– GROUNDS DAMAGES AWARDED ARE EXCESSIVE EVIDENCE INSUFFICIENT TO JUSTIFY DECISION DECISION IS CONTRARY TO LAW

– FORM BY MOTION SPECIFICALLY POINTING OUTTHE FINDINGS OR

CONCLUSIONS NOT SUPPORTED BY EVIDENCE OR CONTRARY TO LAW, REFERRING TO EVIDENCE OR PROVISIONS OF LAW

– ACTION GRANT THUS AMEND OR REVERSE JUDGMENT DENY GRANT OR DENY PARTIALLY

– NO SECOND MOTION FOR RECONSIDERATION ALLOWED

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POST JUDGMENT REMEDIESPETITION FOR RELIEF

• KINDS– FROM JUDGMENT– FROM DENIAL OF APPEAL

• 60 DAYS FROM NOTICE 6 MONTHS FROM ENTRY

• FORM– VERIFIED PETITION– AFFIDAVITS SHOWING:

FAME GOOD AND SUBSTANTIAL CAUSE OF ACTION OR DEFENSE

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EXECUTION AND SATISFACTION• FINAL AND EXECUTORY JUDGMENT

– ACTION DISPOSED OF, PERIOD TO APPEAL EXPIRED WITH NO APPEAL, OR APPEAL PERFECTED BUT FINALLY RESOLVED

– MATTER OF RIGHT– COURT OF ORIGIN OR APPELLATE COURT– MOTION FOR WRIT OF EXECUTION WITH CERTIFIED

TRUE COPY OF JUDGMENT AND ENTRY, NOTICE TO ADVERSE PARTY

• EXECUTION PENDING APPEAL– DISCRETIONARY– COURT OF ORIGIN OR APPELLATE COURT– PETITIONER’S BOND– UPON GOOD REASONS

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EXECUTION AND SATISFACTION• JUDGMENTS NOT STAYED BY APPEAL

– INJUNCTION– RECEIVERSHIP– ACCOUNTING– SUPPORT

• EFFECT OF REVERSAL OF EXECUTED JUDGMENT– RESTITUTION– REPARATION OF DAMAGES

• FORM OF EXECUTION– BY MOTION (WITHIN 5 YEARS)– BY INDEPENDENT ACTION (AFTER 5 YEARS BEFORE

PRESCRIPTION)

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EXECUTION AND SATISFACTION• MANNER OF EXECUTION

– MONEY JUDGMENT IN CASH, CERTIFIED BANK CHECK, OR ACCEPTABLE MODE LEVY GARNISMENT

– JUDGMENT FOR SPECIFIC ACT– SPECIAL JUDGMENT

• PROPERTY EXEMPT FROM EXECUTION• THIRD PARTY CLAIMANT• EXECUTION SALE

– NOTICE– PUBLIC SALE– CERTIFICATE OF SALE– REDEMPTION

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APPEALS• AM NO. 07-7-12 Amending Rules 41,

45, 58 and 65 (Dec 27, 2007)• NOTICE OF APPEAL/RECORD ON APPEAL

– MTC TO RTC– RTC TO CA

• PETITION FOR REVIEW– RTC (APPELLATE JURISCTION) TO CA [RULE 42]– QJA TO CA [RULE 43]

• PETITION FOR REVIEW ON CERTIORARI– RTC (PURE QUESTION OF LAW) TO SC– CA TO SC

65

APPEALS• IN GENERAL

– PERFECTION OF APPEAL– RESIDUAL JURISDICTION– TRANSMITTAL OF RECORDS– NO EXTENSION OF FILING OF MOTION FOR NEW

TRIAL/RECONSIDERATION; NOTICE OF APPEAL– PAYMENT OF DOCKET AND OTHER LAWFUL FEES– SAME PARTIES– MODE OF APPEAL DETERMINES WHERE TO FILE

NOTICE OF APPEAL (WITH TRIAL COURT)PETITION (WITH APPELLATE COURT)

66

APPEALS• MTC TO RTC

– BY NOTICE OF APPEAL 15 DAYSSAME PARTIESMATERIAL DATESFILED IN MTC

– WITH RECORD ON APPEAL 30 DAYSSPECIAL PROCEEDINGSMULTIPLE OR SEPARATE APPEALS

– APPEAL PROCEEDINGS IN RTC

67

APPEALS• NO APPEAL FROM RTC INTERLOCUTORY ORDER OR

ORDER:– DENYING PETITION FOR RELIEF OR ANY SIMILAR MOTION

SEEKING RELIEF FROM JUDGMENT;– INTERLOCUTORY ORDER; – DISALLOWING OR DISMISSING AN APPEAL;– DENYING MOTION TO SET ASIDE JUDGMENT BY

COMPROMISE ON GROUND OF FRAUD, MISTAKE, DURESS; – OF EXECUTION; – JUDGMENT FOR OR AGAINST ONE OR MORE OF SEVERAL

PARTIES OR IN SEPARATE CLAIMS WHILE MAIN CASE PENDING UNLESS COURT ALLOWS APPEAL

– DISMISSING ACTION WITHOUT PREJUDICE.• REMEDY IS SPECIAL CIVIL ACTION OF CERTIORARI

UNDER Rule 65

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APPEALS• MODES OF APPEAL FROM RTC JUDGMENT OR

FINAL ORDER:– ORDINARY APPEAL (NOTICE OF APPEAL FILED WITH RTC;

APPEAL BRIEFS FILED WITH CA) – PETITION FOR REVIEW (FILED WITH CA)– APPEAL BY CERTIORARI (FILED WITH SC)

• PERIOD TO FILE APPEAL 15 DAYS WITH RECORD ON APPEAL 30 DAYS; HABEAS CORPUS 48 HOURS

• DISMISSAL OF APPEAL BY TRIAL COURT– FILED OUT OF TIME– NON-PAYMENT OF DOCKET AND OTHER FEES

69

APPEALS• PETITION FOR REVIEW FROM RTC

(APPELLATE JURISDICTION) TO CA– VERIFIED PETITION– WITHIN 15 DAYS MAY BE EXTENDED FOR 15

DAYS; NO FURTHER EXTENSION EXCEPT FOR MOST COMPELLING REASON FOR 15 DAYS

– ACCOMPANIED BY DUPLICATE ORIGINAL OR TRUE COPY OF JUDGMENT, PLEADINGS, MATERIAL PORTIONS OF RECORDS

– CONTENTS INCLUDE MATERIAL DATES

70

APPEALS• APPEALS FROM QUASI JUDICIAL

AGENCIES– CTA TO SC UNDER RULE 45– COMELEC AND COA TO SC UNDER RULE 65– NLRC TO CA UNDER RULE 65– OTHER QJA TO CA UNDER RULE 43

QUESTIONS OF FACT, OF LAW, OR MIXED QUESTIONS OF FACT AND LAW

PETITION FOR REVIEW FILED WITH CAFINDINGS OF FACT SUPPORTED BY SUBSTANTIAL

EVIDENCE BINDING ON CAAPPEALS SHALL NOT STAY AWARD OR JUDGMENT

UNLESS ORDERED BY CA

71

APPEALS• APPEAL BY CERTIORARI TO THE SC

– FROM CA, SANDIGANBAYAN, CTA OR RTC OR OTHER COURTS

– BY WAY OF PETITION FOR REVIEW ON CERTIORARI ONLY QUESTIONS OF LAW

– DISMISSAL OF PETITION APPEAL WITHOUT MERIT PROSECUTED FOR DELAY QUESTIONS TOO UNSUBSTANTIAL

• REVIEW DISCRETIONARY WHEN COURT A QUO HAS:– DECIDED QUESTION OF SUBSTANCE – DECIDED NOT IN ACCORD WITH LAW OR SC DECISIONS– DEPARTED FROM ACCEPTED AND USUAL COURSE OF

JUDICIAL PROCEEDINGS– SANCTIONED DEPARTURE BY THE LOWER COURT

72

COURT OF APPEALSPROCEDURE

• ORDINARY APPEALED CASES– APPEAL BRIEFS (RULE 44)

• ORIGINAL CASES – CERTIORARI, PROHIBITION, MANDAMUS (RULE 65)– QUO WARRANTO (RULE 66)

• ANNULMENT OF RTC JUDGMENTS OR FINAL ORDERS OR RESOLUTIONS (RULE 47)– EXTRINSIC FRAUD (WHICH COULD NOT HAVE BEEN

RAISED IN A MOTION FOR NEW TRIAL OR PETITION FOR RELIEF) FILED WITHIN 4 YRS FROM DISCOVERY

– LACK OF JURISDICTION UNLESS BARRED BY LACHES OR ESTOPPEL

73

COURT OF APPEALSPROCEDURE

• PRELIMINARY CONFERENCE• ORAL ARGUMENT• MOTIONS NOT SET FOR HEARING• DISMISSAL OF APPEAL

– FORMAL DEFICIENCIES– NOT APPEALABLE TO CA– WHERE APPEAL FROM RTC RAISES QUESTION OF

LAW ONLY– WHERE NOTICE OF APPEAL INSTEAD OF PETITION

FOR REVIEW WAS FILED– APPEAL ERRONEOUSLY TAKEN TO CA

74

COURT OF APPEALSPROCEDURE

• HARMLESS ERROR RULE– NO ERROR IN TRIAL COURT’S REFUSAL TO TAKE

ACTION RE EVIDENCE, RULING OR ORDER UNLESS INCONSISTENT WITH SUBSTANTIAL JUSTICE OR AFFECTS SUBSTANTIAL RIGHTS OF PARTIES

• QUESTIONS THAT MAY BE DECIDED– JURISDICTION– ASSIGNED ERRORS– ERRORS CLOSELY RELATED TO OR DEPENDENT

ON AN ASSIGNED ERROR AND PROPERLY ARGUED IN BRIEF

75

SUPREME COURTPROCEDURE

• ORIGINAL CASES– CERTIORARI, PROHIBITION, MANDAMUS, QUO

WARRANTO, HABEAS CORPUS, DISCIPLINARY PROCEEDINGS AGAINST JUDGES, ATTORNEYS, CASES OF AMBASSADORS, CONSULS

• APPEALED CASES– BY WAY OF PETITION FOR REVIEW ON

CERTIORARI ONLY– DISMISSAL OF APPEAL– IMPROPER APPEAL WITH FACTUAL ISSUES MAY

BE REFERRED TO CA

76

PROVISIONAL REMEDIES• PRELIMINARY ATTACHMENT

• PRELIMINARY INJUNCTION

• RECEIVERSHIP

• REPLEVIN

• SUPPORT PENDENTE LITE

77

PRELIMINARY ATTACHMENT

• AVAILABLE IN ACTION:

– FOR MONEY OR ACTUAL DAMAGES, PARTY ABOUT TO DEPART WITH INTENT TO DEFRAUD CREDITORS

– FOR MONEY OR PROPERTY EMBEZZLED– FOR POSSESSION OF PROPERTY FRAUDULENTLY

TAKEN WHEN IT HAS BEEN CONCEALED– AGAINST A PARTY GUILTY OF FRAUD IN CONTRACTING

DEBT OR INCURRING /PERFORMING OBLIGATION– AGAINST A PARTY WHO HAS DISPOSED OF PROPERTY

TO DEFRAUD CREDITOR– AGAINST A PARTY NOT RESIDING NOR FOUND IN PHIL

OR ON WHOM SUMMONS MAY BE SERVED BY PUBLICATION

78

PRELIMINARY ATTACHMENT• HOW ISSUED:

– EX PARTE OR WITH NOTICE AND HEARING• WHEN ISSUED:

– AFFIDAVIT BASED ON PERSONAL KNOWLEDGE– ANY OF THE GROUNDS IN SECTION 1– NO SUFFICIENT SECURITY FOR THE CLAIM– AMOUNT DUE OR VALUE OF PROPERTY EQUAL TO

CLAIM ABOVE ALL LEGAL COUNTERCLAIMS• NO LEVY ENFORCED UNLESS PRECEDED OR

CONTEMPORANEOUSLY WITH SERVICE OF SUMMONS– EXCEPT WHERE SUMMONS CANNOT BE SERVED

DESPITE DILIGENT EFFORTS– DEFENDANT IS A NONRESIDENT, TEMPORARILY

ABSENT FROM PHIL, ACTION IN REM OR QUASI IN REM

79

PRELIMINARY ATTACHMENT

• MANNER OF IMPLEMENTATION– REAL PROPERTY, RD AND OCCUPANT– PERSONAL PROPERTY BY TAKING AND SAFELY

KEEPING IT AFTER GIVING RECEIPT– STOCKS, PRES OR MANAGING AGENT – DEBTS/CREDITS/BANK DEPOSITS, PERSON

OWING SUCH DEBTS– INTEREST IN ESTATE, EXECUTOR

ADMINISTRATOR OR PERSONAL REP OF DECEASED

– CUSTODIA LEGIS, COURT AND CUSTODIAN

80

PRELIMINARY ATTACHMENT• DISCHARGING ATTACHMENT

– MAKES CASH DEPOSIT– FILES COUNTER-BOND– MOVES TO SET ASIDE

IMPROPERLY OR IRREGULARLY ISSUED BOND INSUFFICIENT ATTACHMENT EXCESSIVE

• CLAIM FOR DAMAGES FOR IMPROPER, IRREGULAR OR EXCESSIVE ATTACHMENT– BEFORE TRIAL, PERFECTION OF APPEAL, JUDGMENT

BECOMES EXECUTORY– WITH NOTICE AND HEARING– AGAINST BOND, IF INSUFFICIENT AGAINST ANY

PROPERTY OF ATTACHING PARTY NOT EXEMPT

81

PRELIMINARY INJUNCTION• KINDS

– PROHIBITORY– MANDATORY

• GROUNDS– APPLICANT ENTITLED TO RELIEF CONSISTING OF

RESTRAINING ACT, OR REQUIRING PERFORMANCE OF ACT

– ACT WOULD PROBABLY WORK INJUSTICE – ACT IN VIOLATION OF RIGHTS OF APPLICANT– TENDING TO RENDER JUDGMENT INEFFECTUAL

• OBJECTION– INSUFFICIENT APPLICATION– IRREPARABLE INJURY TO PARTY ENJOINED– COUNTER-BOND

82

PRELIMINARY INJUNCTION• 72 HOUR TRO (EXEC JUDGE/PRESIDING JUDGE) EX

PARTE IN CASE OF EXTREME URGENCY; GRAVE INJUSTICE AND IRREPARABLE INJURY; THEN SERVICE OF SUMMONS AND SUMMARY HEARING TO DETERMINE IF TRO TO BE EXTENDED NOT EXCEEDING 20 DAYS

• 20 DAY TRO EX PARTE IN CASE OF GREAT AND IRREPARABLE INJURY; THEN SERVICE OF SUMMONS AND SUMMARY HEARING FOR ENJOINED PARTY TO SHOW CAUSE WHY PI SHOULD NOT ISSUE

• PI ALWAYS WITH NOTICE AND HEARING• CA 60 DAY TRO; SC TRO UNTIL FURTHER ORDERS• TRIAL COURT, CA, SB, CTA ISSUING PI AGAINST LOWER

COURT, BOARD, OFFICER, QJA TO DECIDE MAIN CASE WITHIN 6 MONTHS FROM ISSUANCE

83

RECEIVERSHIP

• PARTY APPLYING HAS INTEREST IN PROPERTY SUBJECT OF ACTION WHICH IS IN DANGER OF BEING LOST OR MATERIALLY INJURED

• MORTGAGED PROPERTY IN DANGER OF BEING WASTED, VALUE INSUFFICIENT TO DISCHARGE MORTAGE DEBT

• AFTER JUDGMENT, TO PRESERVE PROPERTY PENDING APPEAL OR AID IN EXECUTION

• WHERE IT IS MOST CONVENIENT MEANS TO PRESERVE, ADMINISTER OR DISPOSE OF PROPERTY

84

REPLEVIN

• WHEN/HOW TO APPLY– BEFORE ANSWER– APPLICANT IS OWNER OF

PROPERTY/ENTITLED TO POSSESSION– PROPERTY WRONGFULLY DETAINED BY

ADVERSE PARTY– PROPERTY HAS NOT BEEN DISTRAINED OR

TAKEN FOR A TAX ASSESSMENT OR FINE OR IN CUSTODIA LEGIS

– ACTUAL MARKET VALUE OF PROPERTY– BOND IN DOUBLE THE VALUE

85

SPECIAL CIVIL ACTIONS• INTERPLEADER• DECLARATORY RELIEF AND SIMILAR REMEDIES:• REVIEW OF JUDGMENTS AND FINAL ORDERS OR

RESOLUTION OF THE COMELEC AND COA• CERTIORARI, PROHIBITION AND MANDAMUS• QUO WARRANTO• EXPROPRIATION• FORECLOSURE OF REM• PARTITION• FORCIBLE ENTRY AND UNLAWFUL DETAINER• CONTEMPT

86

INTERPLEADER

• WHEN PROPER

– CONFLICTING CLAIMS AGAINST ONE WITHOUT INTEREST

– SUMMONS ON CONFLICTING CLAIMANTS– MOVE TO DISMISS OR ANSWER WITH

COUNTERCLAIM, CROSS-CLAIM, THIRD PARTY COMPLAINT

– AFTER PRE-TRIAL, COURT TO DETERMINE RIGHTS AND OBLIGATIONS

87

DECLARATORY RELIEF• PURPOSE

– TO DETERMINE ANY QUESTION OF CONSTRUCTION OR VALIDITY, AND FOR DECLARATION OF RIGHTS AND DUTIES, UNDER LAW OR CONTRACT

– REFORMATION OF INSTRUMENT– QUIET TITLE OR REMOVE CLOUDS– CONSOLIDATE OWNERSHIP

• NOTIFY SOLICITOR GENERAL (re statute or ordinance involved)

• WHERE THERE IS ALREADY BREACH OR VIOLATION, CONVERT INTO ORDINARY ACTION

88

REVIEW OF COMELEC/COA JUDGMENTS

• SUPREME COURT ON CERTIORARI UNDER RULE 65 WITHIN 30 DAYS

• IF MR FILED, BALANCE OF 30 DAY PERIOD TO FILE BUT NOT LESS THAN 5 DAYS

• FILING OF PETITION SHALL NOT STAY THE EXECUTION OF THE JUDGMENT OR FINAL ORDER UNLESS SC DIRECTS OTHERWISE

89

CERTIORARI, PROHIBITION, MANDAMUS

• COMMON REQUIREMENTS– GRAVE ABUSE OF DISCRETION– NO APPEAL NOR OTHER PLAIN, SPEEDY AND ADEQUATE

REMEDY– VERIFICATION/ CERTIFICATION OF NON-FORUM SHOPPING– 60 DAYS FROM NOTICE OF JUDGMENT OR DENIAL OF MR– CERTIFIED TRUE COPY OF JUDGMENT (except mandamus)– SC, CA (particularly from QJA), RTC (from lower court)– NO EXTENSION EXCEPT FOR 15 DAYS FOR COMPELLING

REASON– COURT MAY ISSUE TRO/PI– CASE A QUO TO PROCEED UNLESS TRO/PI

90

CERTIORARI, PROHIBITION, MANDAMUS

• CERTIORARI– TRIBUNAL, BOARD, OFFICER WITH JUDICIAL OR QUASI-JUDICIAL

FUNCTIONS– ANNUL OR MODIFY PROCEEDINGS

• PROHIBITION– TRIBUNAL, CORPORATION, BOARD, OFFICER OR PERSON, WITH

JUDICIAL, QUASI-JUDICIAL OR MINISTERIAL FUNCTIONS– COMMAND RESPONDENT TO DESIST FROM FURTHER PROCEEDING

• MANDAMUS– TRIBUNAL, CORPORATION, BOARD,OFFICER OR PERSON

UNLAWFULLY NEGLECTS THE PERFORMANCE OF AN ACT WHICH LAW SPECIFICALLY ENJOINS AS DUTY OR UNLAWFULLY EXCLUDES ANOTHER FROM USE AND ENJOYMENT OF RIGHT OR OFFICE

– COMMAND PERSON TO DO ACT AND TO PAY DAMAGES SUSTAINED BY PETITTIONER BY REASON OF WRONGFUL ACT OF RESPONDENT

91

QUO WARRANTO• AGAINST:

– PERSON WHO USURPS, INTRUDES INTO, OR UNLAWFULLY HOLDS OR EXERCISES A PUBLIC OFFICE, POSITION OR FRANCHISE

– PUBLIC OFFICER DOES AN ACT WHICH CONSISTUTES A GROUND FOR FORFEITURE OF HIS OFFICE

– ASSOCIATION WHICH ACTS AS CORPORATION WITHOUT AUTHORITY

• WHO COMMENCES ACTION:– PERSON/OSG (RTC MANILA, CA, SC)

• WHEN:– ONE YEAR FROM ACCRUAL OF CAUSE OF ACTION

• CONTRAST WITH MANDAMUS

92

EXPROPRIATION

• RTC HAS JURISDICTION REGARDLESS OF VALUE• VERIFIED COMPLAINT AGAINST ALL PERSONS

OWNING AND OCCUPYING PROPERTY• PLAINTIFF MAY TAKE POSSESSION UPON DEPOSIT

OF AMOUNT EQUAL TO ASSESSED VALUE• TWO STEP DETERMINATION:

– AUTHORITY TO EXPROPRIATE– JUST COMPENSATION (BY 3 COMMISSIONERS)

• PLAINTIFF MAY TAKE POSSESSION PENDING APPEAL

• MINOR/INCOMPETENT TO BE REPRESENTED BY GUARDIAN OR GUARDIAN AD LITEM

93

FORECLOSURE OF REM

• CONTENTS OF COMPLAINT (quasi in rem)• COURT TO:

– ASCERTAIN AMOUNT DUE– RENDER JUDGMENT FOR SUCH AMOUNT AND THAT

SAME BE PAID WITHIN PERIOD OF NOT LESS THAN 90 DAYS NOR MORE THAN 120 DAYS FROM ENTRY (equity of redemption)

– IN DEFAULT OF PAYMENT, PROPERTY TO BE SOLD AT PUBLIC AUCTION (Rule 39) TO SATISFY JUDGMENT (without right of redemption unless mortgagee is bank)

– ISSUE DEFICIENCY JUDGMENT (in personam)– ISSUE ORDER OF CONFIRMATION– ISSUE WRIT OF POSSESSION

94

PARTITION

• ACTION TO COMPEL PARTITION OF REAL PROPERTY

• IMPLEAD ALL PERSONS INTERESTED IN PROPERTY• COURT TO ORDER PARTITION• PARTIES TO EXECUTE INSTRUMENTS OF

CONVEYANCE OR COMMISSIONERS TO MAKE PARTITION

• COURT TO CONFIRM• FINAL ORDER DECREEING PARTITION AND

ACCOUNTING MAY BE APPEALED• EXTRAJUDICIAL OR AMICABLE PARTITION

POSSIBLE WITHOUT RECOURSE TO ACTION

95

FORCIBLE ENTRY AND UNLAWFUL DETAINER

• FORCIBLE ENTRY– PRIOR POSSESSION– DEPRIVED OF POSSESSION BY FITSS

• UNLAWFUL DETAINER– EXPIRATION OF LEASE OR RIGHT TO POSSESSION– PROPERTY UNLAWFULLY WITHELD

• OTHER REQUIREMENTS– ONE YEAR– DEMAND FOR LESSEE TO PAY AND VACATE/NOTICE– SUMMARY PROCEDURE IRRESPECTIVE OF AMOUNT OF UNPAID

RENTALS PROHIBITED PLEADINGS TIME LIMITATIONS AFFIDAVITS AND POSITION PAPERS

– QUESTION OF OWNERSHIP TO BE PROVISIONALLY ADJUDGED– IMMEDIATE EXECUTION EXCEPT WHERE SUPERSEDEAS BOND

FILED AND RENT DEPOSITED (APPEAL TO CA OR SC – NO MORE EXCEPTION)

96

CONTEMPT• DIRECT CONTEMPT

– MISBEHAVIOR IN COURT WHICH OBSTRUCTS OR INTERUPTS PROCEEDINGS; DISRESPECT

– OFFENSIVE PERSONALITIES TOWARD OTHERS– REFUSAL TO BE SWORN OR TO ANSWER AS WITNESS OR TO

SUBSCRIBE AN AFFIDAVIT OR DEPOSITION• INDIRECT CONTEMPT

– MISBEHAVIOR OF AN OFFICER OF THE COURT IN PERFORMANCE OF HIS OFFICIAL DUTIES

– DISOBEDIENCE OR RESISTANCE TO A LAWFUL WRIT, PROCESS, ORDER

– ABUSE OF OR UNLAWFUL INTERFERENCE WITH PROCESSES OR PROCEEDINGS OF A COURT NOT DIRECT CONTEMPT

– IMPROPER CONDUCT TENDING TO IMPEDE ADMINISTRATION OF JUSTICE

– ASSUMING TO BE AN ATTY– FAILURE TO OBEY SUBPOENA– RESCUE OF PERSON IN CUSTODY

97

CONTEMPT• PROCEDURE

– DIRECT CONTEMPT SUMMARYNO APPEAL BUT MAY QUESTION THRU CERTIORARIEXECUTION UNLESS BOND FILED

– INDIRECT CONTEMPTVERIFIED PETITION OR MOTU PROPRIO BY THE

COURTRESPONDENT TO COMMENT AND BE HEARDPENALTIES

– IMPRISONMENT– FINE– COMPLETE RESTITUTION

APPEALABLE AS IN CRIMINAL CASESEXECUTION UNLESS BOND FILED

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GOOD LUCK!