CIVIL PROCEDURE REMEDIAL LAW PRE-WEEK

CIVIL PROCEDURE
PART 2: ORDINARY CIVIL ACTIONS

NOTE: CAUSE OF ACTION

CNFS = Certificate of non-forum shopping = Act/omission by which a party violates another’s

COA = Cause of action right.
COC = Clerk of court o Elements:
COCL = Counterclaim 1) Plaintiff’s legal right;
CRCL = Cross-claim 2) Defendant’s correlative obligation; &
FAME = Fraud, accident, mistake or excusable 3) Defendant’s act/omission violating plaintiff’s
negligence right.
FEUD = Forcible entry or unlawful detainer
GAD = Grave abuse of discretion SPLITTING OF COA
GADALEJ = Grave abuse of discretion amounting to = Dividing a single/indivisible COA into several claims
lack/excess of jurisdiction and bringing several actions thereon.
JOP = Judgment on the pleadings o Not allowed.
LOJ = Lack of jurisdiction o Effects:
MFR = Motion for reconsideration 1) Litis pendentia;
MNT = Motion for new trial 2) RJ;
MTD = Motion to dismiss 3) MTD under Rule 16 Sec. 1(e) or (f).
QJA = Quasi-judicial agency
RFJ = Relief from judgment JOINDER OF COA
RJ = Res judicata = If plaintiff has several COAs against the same
SJ = Summary judgment defendant, he may join them all in a single
SM = Subject matter complaint.
SOF = Statute of frauds o Not compulsory but purely permissive.
SOL = statute of limitations o Requisites:
TRO = Temporary restraining order 1) Compliance with rules on joinder of parties;
X = Exception 2) Not include special civil actions or actions
governed by special rules; &
3) If COAs are between the same parties but
PART 1: JURISDICTION pertain to different venues/jurisdictions,
joinder allowed in an RTC which covers (in
= Court’s power to hear the action/proceedings and venue and jurisdiction) at least 1 of the COAs.
render a binding judgment. o Totality rule = If all COAs are principally
monetary claims, the aggregate amount
PRESCRIBED JURISDICTION claimed is the test of jurisdiction.
= Jurisdiction over a particular SM.
o Conferred only by the Constitution/law. JOINDER OF PARTIES
o Determined by complaint’s allegations. 1) Compulsory joinder of indispensable parties;
o LOJ can be raised at any time. o Indispensable parties = A final decree
o Not waivable. would necessarily affect their rights so that
o X: Jurisdiction by estoppel. the court cannot proceed without their
o Once attached to a court, cannot be ousted by presence.
subsequent law. 2) Permissive joinder of necessary parties;
o X: If subsequent law expressly provides for o Necessary parties = Their presence is
retroactivity. necessary to adjudicate the whole controversy
o Conferred upon (filing of initiatory pleading + but their interests are separable such that a
payment of docket fee). final decree can be made without affecting
o X: May allow docket fee payment within a them.
reasonable time, but within prescriptive 3) Permissive joinder of parties simple (on a common
period. question of law/fact);
o Permissive joinder = Requisites:
SPECIFIC JURISDICTION a) COA arises out of the same transaction or
< See Annex. > series of transactions;
o Series of transactions =
KATARUNGANG PAMBARANGAY Transactions connected by the same
o Applicability: If parties actually reside in the same SM.
city/municipality. b) Question of law/fact common to all
o X: plaintiffs/defendants; &
1) Government is a party; c) Joinder not proscribed by
2) A public officer/EE is party + Case relates to jurisdiction/venue rules.
official functions; 4) Class suit = Requisites:
3) Offenses punishable by (imprisonment > 1 a) SM is a common/general interest to many
year) or (fine > P5K); persons;
4) No private offended party; b) The persons are so numerous that it is
5) Realty located in different impracticable to bring them all to court;
cities/municipalities. c) Parties suing are sufficiently numerous and
o X: Parties agree; representative of the class and can fully
6) Parties actually reside in barangays of protect the interests of all concerned; &
different cities/municipalities; d) Parties sue/defend for the benefit of all.
o X: The barangays adjoin each other + 5) Alternative defendants = Plaintiff is uncertain
Parties agree. against whom of several persons he is entitled to
7) Disputes determined by the President or relief, so he may join any/all of them in the
recommended by DOJ Secretary. alternative, although a right to relief against one

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CIVIL PROCEDURE
may be inconsistent with a right to relief against
the other.
DEATH OF PARTY DURING THE
PENDENCY OF THE ACTION
CLAIM NOT EXTINGUISHED BY DEATH
o Counsel’s duty to inform the court within 30 days
and to give legal representatives’ names.
o Heirs will be substituted. If minor heirs, appoint
guardian ad litem.
o If no legal representative is named, opposing
party to procure the appointment the estate’s
executor/administrator.
IF PARTY IS A PUBLIC OFFICER
o Requisites for substitution:
1) Public officer is a party in his official capacity;
2) Pending the action, he dies/resigns;
3) Within 30 days after the successor takes
office, it is shown that there is a substantial
need to continue/maintain the action;
4) Successor adopts/continues (or threatens) his
predecessor’s action; &
5) Successor was given notice and opportunity to
be heard.
ACTION ON CONTRACTUAL MONEY CLAIMS
o If defendant dies before entry of final judgment in
the court in which the action was pending at the
time of such death, case not dismissed but shall
continue until entry of final judgment.
o If judgment favorable to plaintiff, enforced as
claim against deceased defendant’s estate.
PLEADINGS
CERTIFICATE OF NON-FORUM SHOPPING
o Forum shopping = Simultaneous/successive
filing of multiple suits in different courts, involving
the same parties, on the same/related COAs
and/or for the same or substantially the same
relief.
o Test: WON in the 2 or more cases pending, there
is identity of:
1) Parties;
2) Rights/COAs; &
3) Relief sought.
o CNFS is to be executed by the petitioner, not by
the counsel.
o CNFS is required only for initiatory pleadings.
o CNFS is not required in a COCL since it is not
an initiatory pleading.
o Failure to comply: Not curable by mere
amendment; cause for the dismissal of the case,
without prejudice and upon motion and after
hearing.
DEFENSES
o Kinds:
1) Affirmative defenses = Confession +
Avoidance. Assuming arguendo claimant’s
allegations, new matters alleged by defendant
still bar recovery.
2) Negative defenses = Specific denials of
claimant’s material allegations.
a) Specific denial = Specifies each material
allegation belied + Sets forth the
substance of the matters upon which he
relies to support his denial.
b) Denial with qualification = Specifies
allegations admitted + Denies the rest.
c) Specific denial for lack of
knowledge/information sufficient to form
100% UP LAW UP BAROPS
REMEDIAL LAW PRE-WEEK
as belief as to the truth of the complaint’s
allegations.
d) Specific denial under oath = Contests
the authenticity or due execution of an
actionable document and sets forth what
are claimed to be the facts.
o Actionable document = Contains
the COA; not merely evidentiary.
o Actionable document’s genuineness
and due execution are deemed
admitted unless specifically denied.
o X: Defendant is not party to the
document.
e) Negative pregnant = Denial pregnant
with an admission.
o Allegations not specifically denied are deemed
admitted.
o X:
1) Amount of unliquidated damages;
2) Allegations immaterial to COA;
3) Conclusions of law.
COUNTERCLAIMS
= Defendant’s claim against an opposing party.
COMPULSORY COCL
= Requisites:
1) Arises out of, or necessarily connected with,
the transaction/occurrence that is the SM of
the opposing party's claim;
2) Does not require for its adjudication the
presence of 3rd parties of whom the court
cannot acquire jurisdiction; &
3) Must be within the court’s jurisdiction.
o COCL not set up in the answer is deemed barred.
o X: COCL acquired by the party after serving
his answer (which may be pleaded by a
supplemental pleading before judgment).
o Test: Logical relationship test = If trial involves
many of the same factual and legal issues.
cf: CROSS-CLAIM
= Requisites:
1) Claim by one party against a co-party;
2) Arises out of the SM of the complaint/COCL; &
3) Cross-claimant is prejudiced by the claim
against him by the opposing party.
o CRCL is always compulsory. Barred if not set up.
o X:
1) If outside the court’s jurisdiction;
2) Permissive CRCL = 3rd parties are
necessary for adjudication + Court cannot
acquire jurisdiction over them.
AMENDMENT OF PLEADING
o Kinds:
1) Formal amendments = Clearly clerical
errors may be summarily corrected.
o At any stage of the action.
o Provided: No prejudice to adverse party.
2) Substantial amendments
a) If a matter of right: Any time before a
responsive pleading is served.
b) If a matter of discretion
= Substantial + Responsive pleading
already served.
o Requires court’s leave.
o When amendment by leave of court is not
allowed:
1) If case’s COA/defense/theory is changed;
2) If for conferring jurisdiction to court;
3) If for curing a premature/non-existing COA;
4) If for delay.
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CIVIL PROCEDURE REMEDIAL LAW PRE-WEEK

o Effects of amendment: Xxx 1) Actual receipt Registry receipt

o Amendment supersedes the amended by the addressee issued by the post
pleading. office
o Claims and defenses in superseded pleading Xxx 2) 5 days after Xxx
which are not incorporated in the amended addressee
pleading are deemed waived. received 1st
o Admissions made in the superseded pleading postmaster's
may be received in evidence. notice

AMENDMENT TO CONFORM TO EVIDENCE o Personal filing and service preferred.

o If issues not raised by the pleadings are tried
without objection, they shall be treated as if
raised in the pleadings.
o Pleading may be amended any time to raise these
issues and to conform to the evidence.
cf: SUPPLEMENTAL PLEADING
= Sets forth transactions/events that happened
since the original pleading’s date.
o X: Papers emanating from the court.
o The other modes must be accompanied by an
explanation why the service/filing was not done
personally.
o If no written explanation, the paper considered as
not filed.
SUMMONS

= Coercive force issued by court to acquire jurisdiction

FILING AND SERVICE over defendant’s person.
o When issued: Upon filing of the complaint +
o Filing = Presenting the pleading/paper to the payment of legal fees.
COC.
MODES OF SERVICE OF SUMMONS
manner when pleading is proof of filing 1) By service in person to defendant:
of filing deemed filed a) By handing a copy of summons to him;
Personally Upon receipt of the Written/stamped
b) By tendering it to him, if he refuses to receive
pleading by the acknowledgment it.
clerk of court by the clerk of 2) By substituted service = Requisites:
court a) Impossibility of the personal service of
By On the date the Registry receipt, summons within a reasonable time;
registered pleading was and affidavit of the b) Efforts made to find the defendant personally
mail deposited with the person who did the and the fact that such efforts failed; &
post office mailing with: c) Service by leaving copy of summons either:
xxx xxx 1) Full statement (1) With some person of suitable age and
of the date/place of discretion then residing in the defendant’s
depositing the mail residence;
in the post office in (2) With some competent person in charge of
a sealed envelope the defendant’s office or regular business
addressed to the place.
court 3) By publication = Requisites:
xxx Xxx 2) Postage fully a) The action is in rem or quasi in rem;
paid b) Defendant's identity/whereabouts are
xxx Xxx 3) Instructions to unknown and cannot be known by diligent
the postmaster to inquiry; &
return the mail to c) Leave of court.
the sender after 10
days if undelivered WHEN ALIAS SUMMONS MAY ISSUE
1) If summons is returned without being served on
o Service = Providing a party/counsel with a any/all of the defendants; or
pleading/paper’s copy. 2) If summons was lost.

mode of completeness of proof of service WAIVER OF SERVICE OF SUMMONS:

service service o By defendant's voluntary appearance.
Personal Upon actual Written admission of o X: Special appearance to file MTD.
service delivery the party served
Xxx Xxx Official return of the
EFFECT OF NON-SERVICE OF SUMMONS
server; or affidavit o Voids all subsequent proceedings and issuances
of the party serving, starting from the order of default.
with a full statement o If defendant was already served summons on the
of the original complaint, no further summons required
date/place/manner on the amended complaint if it has no new COAs.
of service o But if defendant defaulted on the original
Service by 10 days after Affidavit of the complaint, new summons must be served for the
ordinary mailing, unless person mailing, amended complaint.
mail otherwise showing facts that
provided by the comply with Rule
court 13, Sec. 7 DISMISSAL OF ACTION
Service by Whichever is Affidavit of the
registered earlier: person mailing, MTD BEFORE ANSWER UNDER RULE 16
mail showing facts that GROUNDS
comply with Rule 1) LOJ over the defendant’s person;
13, Sec. 7 2) LOJ over the claim’s SM;
3) Improper venue;
4) Plaintiff’s lack of legal capacity to sue;
5) Litis pendentia = Requisites:

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a) Identity of parties; o X: Personal defenses do not benefit those who

b) identity of rights and relief; did not answer.
c) Same factual basis; &
d) Judgment on one will be RJ on the other.
6) RJ; MODES OF DISCOVERY
7) Prescription;
8) Failure to state COA; 1) Depositions;
9) Extinguished claim; a) Before action;
10) Unenforceable claim under the SOF; b) Pending action;
11) Non-compliance with a condition precedent for c) Pending appeal;
filing claim. 2) Interrogatories to parties;
3) Request for admission by adverse party;
MTD UNDER RULE 17 4) Production/inspection of documents/things;
1) Upon plaintiff’s notice; 5) Physical/mental examination of persons.
2) Upon plaintiff’s motion;
3) Due to plaintiff’s fault.

DEMURRER TO EVIDENCE
= After plaintiff’s presentation of evidence,
defendant moves for dismissal because plaintiff
showed no right to relief upon the facts and the
law.
o If denied, defendant may present evidence.
o If granted but order of dismissal is reversed on
appeal, defendant is deemed to have waived the
right to present evidence.
DEFAULT
= Defendant’s failure to answer within the proper
period.
o Order of default = Interlocutory order issued on
plaintiff’s motion, for defendant’s failure to
seasonably file his responsive pleading.
o Judgment by default = Final judgment rendered
after a default order or plaintiff’s ex parte
evidence.
ELEMENTS OF A VALID DECLARATION OF
DEFAULT
1) Jurisdiction over defendant’s person;
2) Defendant fails to answer within allowed time;
3) Motion to declare the defendant in default;
4) Serving defendant a copy of the motion; &
5) Proof of failure to answer.
CASES WHERE NO DEFAULTS ARE ALLOWED
1) Annulment of marriage, declaration of nullity of
marriage, and legal separation;
2) Special civil actions of certiorari, prohibition and
mandamus.
EFFECT OF ORDER OF DEFAULT
1) Party in default loses standing as a party litigant.
2) Party in default entitled to notice of subsequent
proceedings, but not to take part in the trial.
3) Court to grant relief as claimant’s pleading
warrants.
o But court may require claimant to submit
evidence.
o Award not to exceed the amount or be
different in kind from that prayed for.
o Cannot award unliquidated damages.
RELIEF FROM ORDER OF DEFAULT
o Before judgment, party declared in default may
move to set aside the order of default.
o Must show:
1) That his failure to answer was due to FAME; &
2) That he has a meritorious defense.
PARTIAL DEFAULT
= If claim states a common COA against several
defendants and not all defendants answer, court
to try the case against all defendants upon the
answers filed and evidence presented.
TRIAL
PRE-TRIAL
= Mandatory conference of parties and counsels
before the judge, called by the court after the
joinder of issues or after the last pleading has
been filed and before trial.
o For settling the litigation expeditiously.
o Duty of parties and counsels to appear in pre-trial.
o Party’s non-appearance excused only if either:
1) Valid cause is shown for it;
2) A representative appears in his behalf, fully
authorized in writing:
a) To enter into an amicable settlement;
b) To submit to alternative dispute
resolution; &
c) To enter into stipulations.
o Parties shall file and serve their pre-trial briefs.
Brief must be received by adverse party at least 3
days before the pre-trial date.
o Pre-trial order shall control the subsequent course
of the action.
o Contents of pre-trial order:
1) Matters taken up in the conference;
2) Action taken thereon;
3) Amendments allowed on the pleadings;
4) Parties’ agreements/admissions; &
5) If action shall proceed to trial, definition and
limit of issues to be tried.
CONSOLIDATION OF TRIAL
= If actions involving common question of law/fact
are pending before the court, it may order a joint
hearing/trial or consolidation of all actions.
SEVERANCE OF TRIAL
= Court may issue separate trials for convenience or
to avoid prejudice:
1) Of any claim, COCL, CRCL 3rd-party
complaint;
2) Of any separate issue;
3) Of any number of claims, COCLs, CRCLs, 3rd-
party complaints or issues.
JUDGMENT
JUDGMENT ON THE PLEADINGS
o Grounds:
1) Answer fails to tender an issue;
= Merely general/insufficient denial of
complaint’s material allegations.
2) Answer admits the adverse party’s pleading’s
material allegations.
o Cases where JOP is not allowed and complaint’s
allegations of material facts must be proved:
1) Declaration of nullity of marriage;
2) Annulment of marriage;
3) Legal separation.
SUMMARY JUDGMENT

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= Accelerated judgment. Granted if it is clear that 3) On the merits; &

there is no genuine issue/controversy of fact,
except as to the amount of damages.
o Genuine issue = Issue of fact which needs
presentation of evidence.
o Filing of a motion for SJ does not interrupt the
running of the period for filing an answer. Movant
must also file a Motion for Extension of Time to
File Answer.
o Partial SJ = If there can be no full summary
judgment, trial to deal only with the facts not yet
established. Not a final judgment, but merely a
pre-trial adjudication.
4) Identity of parties, SM and COA.
o Two concepts:
1) Bar by prior judgment = Judgment on 1st
case is absolute bar to every matter which
was litigated or could have been litigated
upon.
2) Conclusiveness of judgment = If 2nd case
is upon a different claim, judgment on 1st
case is estoppel only to those issues already
litigated upon.
o Preclusion of issues; auter action
pendant.

REQUISITES OF A VALID JUDGMENT EFFECT OF FOREIGN JUDGMENTS

1) Court has authority to hear and determine the
matter before it; judgment effect
2) Court has jurisdiction over parties and SM; Upon a specific thing Judgment is conclusive on
3) Parties were given opportunity to present the thing’s title.
evidence; Against a person Judgment is presumptive
4) Court considered such evidence in deciding the evidence of a right as
case; between the parties and
5) Judgment is in writing, and personally and directly their successors in interest.
prepared by the judge; &
6) Judgment clearly states its factual and legal basis, o In either case, judgment may be repelled by
signed by the judge and filed with the COC. evidence of:
1) LOJ;
PROMULGATION 2) Lack of notice to the party;
= Decision is published, officially announced, made 3) Collusion;
known to the public or delivered to the COC for 4) Fraud;
filing, coupled with notice to the parties or their 5) Clear mistake of law/fact.
counsel.

AMENDMENT TO JUDGMENTS EXECUTION OF JUDGMENT

o Court cannot amend the judgment once it has
become final and executory. EXECUTION AS A MATTER OF RIGHT
o X: o When the judgment becomes executory, the court
1) To correct clerical errors (not substantial cannot refuse to issue a writ of execution
amendments); o X:
2) To clarify an ambiguities borne out by the 1) If PFR or action to enjoin judgment is filed
context of the decision; + Preliminary injunction is prayed for and
3) Judgments for support, which can always granted;
be amended from time to time. 2) Incomplete or conditional judgment;
3) Judgment is novated by the parties;
ENTRY OF JUDGMENTS 4) Subsequent facts/circumstances render
o If there is no appeal/MNT/MFR timely filed, the execution unjust/impossible;
COC shall enter the judgment in the book of 5) Change in parties’ situation makes
entries of judgments. execution inequitable;
o Date of finality of the judgment = Date of its entry 6) Judgment became dormant (5-year
in the book. period under Rule39.6 expired without
revival).
EFFECT OF JUDGMENTS o Seasonably perfected appear stays the execution
of judgment.
1) RJ in judgments in rem: o X:
1) Injunction;
judgment conclusive as to 2) Receivership;
Against a specific thing Title of the thing 3) Accounting;
Probate of a will or The will or administration. 4) Support;
administration of the However, the probate of a 5) Judgments declared to be immediately
estate of a deceased will or granting of letters of executor;
person administration shall only be 6) Discretionary execution granted by the
prima facie evidence of the
court.
death of the testator or
o How to execute a final and executory judgment:
intestate;
1) By motion: Within 5 years from the date of its
In respect to the The condition, status or
personal, political, or relationship of the person,
entry.
legal condition or status 2) By action: (After the 5 years + Before it is
of a particular person or barred by the SOL).
his relationship to another o The revived judgment may be enforced
by motion within 5 years from the date of
2) RJ in judgments in personam: its entry; thereafter by action before it is
o Conclusive between the parties and their barred by the SOL.
successors in interest by subsequent title.
DISCRETIONARY EXECUTION
RES JUDICATA o If the court rendering judgment still has
o Requisites: jurisdiction, it may exercise discretion and order
1) Former judgment is by a court with execution pending appeal.
jurisdiction over SM and parties; o X: Inapplicable to CA. Rule on discretionary
2) Final judgment; Execution contemplates a situation where a

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judgment rendered in the exercise of its When Before judgment After judgment
original jurisdiction and the prevailing party in available becomes final and becomes final
said decision seeks immediate execution executory and executory
during the pendency of an appeal. CA has no Period to file Within the time to Within 60 days
authority to issue immediate execution petition appeal from knowledge
pending appeal of its own decisions therein. of judgment
o Filing of a supersedeas bond is sufficient to stay AND within 6
the enforcement of a discretionary execution. months from
o X: Since the suspension of execution is not a entry of
matter of right, if the needs of the prevailing judgment
party are urgent, the court can order Scope of Applies to Judgments, final
immediate execution despite the bond. application judgments and final orders, and
orders only other
proceedings:
EXECUTION OF MONETARY JUDGMENTS
- Land
1) Immediate payment upon demand.
Registration;
2) Levy = Officer appropriates the whole/part of - Special
judgment debtor’s property for a prospective Proceedings;
execution sale. - Order of
3) Garnishment of debts and credits = Levying Execution.
an incorporeal property in the hands of 3rd Grounds 1) FAME; FAME
persons. 2) Newly discovered
evidence
Nature Legal remedy Equitable
POST-JUDGMENT REMEDIES remedy
Verification Motion need not be Petition must be
Remedies against a judgment verified verified
A. Before a judgment becomes final and executory:
1) MFR; ANNULMENT OF JUDGMENT
2) MNT; o Applicability:
3) Appeal. o For annulment by CA of RTC judgments in
B. After the judgment becomes final and executory: civil actions, if MNT/appeal/PFR or other
1) Petition for relief from judgment; appropriate remedies are no longer available
2) Action to annul a judgment; without petitioner’s fault.
3) Certiorari;
o If annulment of MTC judgment, filed in RTC
4) Collateral attack of a judgment that is void on
and treated as ordinary civil action.
its face.
o Grounds:
1) Extrinsic fraud – File within 4 years from
MOTION FOR NEW TRIAL / RECONSIDERATION
discovery.
o Must be filed within the period for appeal.
o X: If ground was availed or could have
o Period for appeal: Within 15 days after notice
been availed of in MNT/PFR.
of the judgment.
2) LOJ – File before barred by laches/estoppels.
o No motion for extension of time for filing
o Effect of judgment of annulment:
MNT/MFR is allowed.
o Sets aside the questioned judgment as null
o Filing of a timely MNT/MFR interrupts the
and void, without prejudice to the original
period to appeal.
action being refiled in the proper court.
o No appeal from an order denying a MNT/MFR.
o But if ground is extrinsic fraud, court may
o Remedies if MNT/MFR is denied:
order trial in TC as if a timely MNT was
1) Appeal from the judgment itself;
granted.
2) Order denying the MNT/MFR may be
o If questioned judgment was already executed,
assailed by a petition for certiorari under
order of restitution or other just and equitable
Rule 65.
relief.
o MNT/MFR is not a prerequisite to an appeal, PFR
o Prescriptive period for the refiling of the
or a petition for review on certiorari.
original action is suspended from the filing of
the original action until the finality of the
grant of MFR grant of MNT
judgment of annulment. But period not
The court may amend the The original judgment suspended if the extrinsic fraud is attributable
judgment or final order shall be vacated, and the to the plaintiff in the original action.
accordingly. The action shall stand for trial
amended judgment is in de novo. The recorded
the nature of a new evidence upon the former
APPEAL
judgment, which trial shall be used at the
supersedes the original new trial without retaking
judgment them (if they are material mode of appeal Applicability
and competent).X Ordinary appeal Rule 40 Appeal to RTC of MTC
judgment/final order
RELIEF FROM JUDGMENT Rule 41 Appeal to CA of RTC
= Seeks to set aside a judgment because petitioner judgment/final order
was: rendered in exercise of
1) Unjustly deprived of a hearing; RTC's original
2) Prevented from taking an appeal because of jurisdiction
FAME. Petition for review Rule 42 Appeal to CA of RTC
o Party who timely filed a MNT/MFR can no longer judgment/final order
file a petition for RFJ after the MNT/MFR was rendered in exercise of
denied. These remedies are mutually exclusive. RTC's appellate
jurisdiction
MNT/MFR RFJ (Rule 38)
(Rule 37)

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CIVIL PROCEDURE
Rule 43 Appeal to CA of QJA
judgments/final
orders/awards/
resolutions rendered in
exercise of quasi-
judicial functions
Appeal by Rule 45 Appeal to SC where
certiorari (petition only questions of law
for review on are raised/involved
certiorari)
ORDINARY APPEAL
o Fresh period rule = Period for appeal is
interrupted by a timely MNT/MFR.
o Motion for extension of time to file MNT/MFR
not allowed.
o Applicability:
1) Rule 40 on appeals from MTC to RTC.
2) Rule 42 on petitions for review from RTC
to CA.
3) Rule 43 on appeals from QJA to CA.
4) Rule 45 on appeals by certiorari to SC.
O Applicability of ordinary appeal: To judgments or
final orders that completely dispose of either:
1) The case;
2) A particular matter in the case, when declared
by ROC to be appealable.
o Interlocutory order = Does not dispose of the
case but leaves something else to be done on the
merits of the case. For purposes of appeal, an
order is final if it disposes of the entire case.
APPEAL BY CERTIORARI TO SC
o Review is not a matter of right, but of sound
judicial discretion.
o Reasons considered in exercising review power:
a) Case of first impression;
b) Power of supervision over lower courts.
o Question of law = When controversy is as to
what the law is on a certain state of facts;
o Question of fact = When controversy is as to the
truth of the facts alleged.
o CA’s findings of fact are final and conclusive and
cannot be reviewed on appeal to the SC,
provided: there is substantial evidence.
o X: CA’s findings of fact may be reviewed by
the SC on appeal by certiorari when:
1) Conclusion is a finding grounded entirely on
speculations/surmises/ conjectures;
2) Inference made is manifestly
mistaken/absurd/impossible;
3) There is GAD in the appreciation of facts;
4) Judgment is based on a misapprehension of
facts;
5) CA’s findings of fact are conflicting;
6) CA, in making its findings, went beyond the
issues of the case and the same is contrary to
the admissions of both parties;
7) CA manifestly overlooked certain relevant
facts not disputed by the parties and which, if
properly considered, would justify a different
conclusion;
8) CA’s findings of fact are contrary to those of
the TC, or are mere conclusions without
citation of specific evidence, or where the
facts set forth by the petitioner are not
disputed by the respondent, or where the
findings of fact of the CA are premised on
absence of evidence but are contradicted by
the evidence of record.
o Rule 65 cannot cure the failure to appeal thru Rule
45.
PART 3: PROVISIONAL REMEDIES
100% UP LAW UP BAROPS
REMEDIAL LAW PRE-WEEK
= Writs and processes available during the pendency
of the action which may be resorted to
preserve/protect parties’ rights/interest.
o Ancillary or auxiliary remedies.
o To secure the judgment or preserve the status
quo.
o All inferior courts can grant provisional remedies,
provided: the main action is within their
jurisdiction.
o Orders granting/denying provisional remedies are
merely interlocutory.
PRELIMINARY ATTACHMENT
O Purposes:
1) To seize the debtor’s property in advance and
hold it as security for satisfying the judgment.
2) To acquire jurisdiction over the action when
personal service of summons cannot be made.
PRELIMINARY INJUNCTION
o Preliminary preventive injunction = Order
granted by the court where the action/proceeding
is pending at any stage of an action/proceeding
prior to the judgment requiring a party or a court,
agency or a person to refrain from a particular
act/s.
o Preliminary mandatory injunction = Requires
the performance of a particular act/s.
o Purpose: To prevent future injury and maintain
the status quo.
o Requisites:
1) Applicant is entitled to the relief demanded;
2) Relief consists in restraining or requiring the
commission/continuance of the act/s;
3) Commission/continuance/non-performance of
the act/s during the litigation would probably
work injustice to the applicant; &
4) The act/s are probably violative of the
applicant’s rights and tend to render the
judgment ineffectual.
o Hearing and prior notice to the party/person
sought to be enjoined is required.
o X:
1) Great/irreparable injury to the applicant
before it can be heard on notice.
o May issue a TRO effective for 20 days
from service on the party sought to be
enjoined.
o Irreparable injury = Of such constant
and frequent recurrence that no
fair/reasonable redress in court or there is
no standard by which their amount can be
measured with reasonable accuracy.
2) Matter is of extreme urgency and the
applicant will suffer grave injustice and
irreparable injury
o May issue ex parte a TRO effective for 72
hours from issuance.
o Within 72 hours, judge shall conduct a
summary hearing to determine WON the
TRO shall be extended until the
application for preliminary injunction can
be heard.
o Maximum period of TRO’s effectivity: 20
days.
o If issued by CA: 60 days.
o If by SC: Until further orders.
o If the application for preliminary injunction is
denied or not resolved within the 20 days, the
TRO is deemed automatically vacated.
o TRO’s effectivity of a TRO is not extendible.
Court cannot extend/renew it on the same
ground for which it was issued.
2008 Page 7 of 9
CIVIL PROCEDURE REMEDIAL LAW PRE-WEEK

2) Person whose rights are affected by the

TRO VS. INJUNCTION statute/regulation/ordinance.
o TRO is intended as a restraint upon the defendant
until the propriety of granting an injunction
pendente lite can be determined. TRO goes no CERTIORARI, PROHIBITION AND
further than to preserve the status quo until such
determination.
MANDAMUS
o Same requirements for application as preliminary
injunction. Certiorari Prohibition Mandamus
grounds
Tribunal, board Proceedings of Tribunal,
or officer tribunal, corporation,
RECEIVERSHIP
exercising corporation, board, officer or
judicial or board, officer or person:
o Receiver = Person appointed by the court in quasi-judicial person, a. unlawfully
behalf of all the parties to the action, to preserve functions acted exercising neglects
and conserve the property in litigation and with LOJ or judicial, quasi- performance of
prevent its possible destruction/dissipation, if it GADALEJ judicial or a specifically
were left in the possession of any of the parties. ministerial enjoined duty;
functions, are or
with LOJ or b. unlawfully
REPLEVIN GADALEJ excludes
another from
the use and
= Principal action is to recover possession of enjoyment of a
personal property from defendant. right/ office
o Extends only to personal property capable of purpose
manual delivery. To correct an To prevent the To compel the
act performed commission or performance of
by the carrying out of the act desired
SUPPORT PENDENTE LITE respondent an act

o Cases where granted: o Common requirement for Rule 65 writs: There is

1) Civil action for support;
2) Criminal action where civil liability includes
support for the offspring as a consequence of
the crime.
o If the right to support is put in issue, court cannot
grant support pendente lite.
o If the person ordered to give support pendente
lite refuses/fails, any 3rd person who furnished
that support to the applicant may enforce his right
of reimbursement.
PART 4: SPECIAL CIVIL ACTIONS
o Rules on ordinary civil actions apply to special civil
actions insofar as not inconsistent or suppletorily.
INTERPLEADER
o Requisites:
1) Person has property in his possession or has
an obligation to render; &
2) Does not claiming any right in it; &
3) Asks that defendants who have conflicting
claims upon the property/obligation be
required to litigate among themselves to
determine who is entitled to the
property/obligation.
DECLARATORY RELIEF
o Requisites:
1) SM is either a written instrument or a
statute/regulation/ordinance;
2) Its terms and validity are doubtful and require
judicial construction;
3) No breach of it yet;
4) Actual justiciable controversy;
5) Issue ripe for judicial determination; &
6) Adequate relief not available through other
means.
o Who may file:
1) Person interested in the instrument;
no appeal or any other plain, speedy and
adequate remedy in the ordinary course of law.
PROHIBITION
o A preventive remedy. But to prevent the act
during the pendency of the proceedings for the
prohibition writ, must obtain a TRO and/or writ of
preliminary injunction.
MANDAMUS
o In the performance of an official duty/act, the
official can only be directed to act, but not to act
in one way or the other.
o X: GAD, manifest injustice, palpable excess of
authority.
CERTIORARI
A petition for review on certiorari as a mode of appeal
(Rule 45) may be distinguished from a special civil
action for certiorari (Rule 65) in that:
o Petition for certiorari as a mode of appeal is
governed by Rule 45 and is filed from a judgment
or final order of the RTC, Sandiganbayan or CA,
within 15 days from notice of the judgment
appealed from or of the denial of the duly filed
MNT/MFR on questions of law only.
o Special civil action for certiorari is governed by
Rule 65 and is filed to annul/modify judgments,
orders or resolutions rendered/issued without or
in excess of jurisdiction or GADALEJ, when there
is no appeal nor plain, speedy and adequate
remedy in the ordinary course of law, to be filed
within 60 days from notice of the judgment, order
or resolution subject of the petition.
o In appeal by certiorari under Rule 45, the
petitioner and respondent are the original parties
to the action and the lower court is not impleaded.
In certiorari under Rule 65, the lower court is
impleaded.
o In appeal by certiorari, the filing of a MFR is not
required; while in the special civil action of
certiorari, MFR is generally required.
QUO WARRANTO

100% UP LAW UP BAROPS 2008 Page 8 of 9

CIVIL PROCEDURE REMEDIAL LAW PRE-WEEK

= Remedy to try disputes with respect to the title to 1) Complaints;

a public office. 2) COCL and CRCL pleaded in the answer;
O Filed by whom, against whom: 3) Answers thereto.
1) By the Government, in the name of the
Republic, against:
a) Person who unlawfully holds/exercises a
public office/position;
b) Public officer who does an act which is
legally a ground for forfeiture of his
office;
c) Association which acts as a corporation in
the Philippines, without being legally
incorporated.
2) By a person claiming to be entitled to a public
office, in his own name, against another who
unlawfully held/exercised such public office.

FORCIBLE ENTRY AND UNLAWFUL

DETAINER

O Actions for recovery of possession of real

property:
1) Accion Interdictal = Summary action for
FEUD.
o Must be brought within 1 year from the
date of (actual entry to the land or last
demand) in the proper MTC/METC.
2) Accion Publiciana = Plenary action for
recovery of the right to possess.
o Brought in the proper RTC when
dispossession has lasted for > 1 year.
3) Accion Reivindicatoria = Plaintiff alleges
ownership and seeks recovery of its full
possession.
o Must be brought in the proper RTC.
o Forcible entry = Defendant’s possession of
land/building is illegal ab initio (by force,
intimidation, strategy, threat or stealth).
o Unlawful detainer = Defendant’s possession of
land/building was originally lawful but ceased to
be so by the expiration of his right to possess.
o Commenced by lessor only after either:
1) Demanding lessee to pay or comply with
the conditions of the lease and to vacate;
2) Serving written notice of such demand
upon the person found on the premises;
3) Posting such notice on the premises if no
person be found thereon, and the lessee
fails to comply within (15 days for land or
5 days for buildings).
o X: Prior demand not required:
1) If action’s purpose is to terminate the
lease due to term’s expiration (not for
failure to pay rentals or comply with
the terms of the lease contract).
2) If action’s purpose is enforcement of
the K’s terms (not for ejectment).
3) When the defendant is not a tenant
but a mere intruder.

SUMMARY PROCEDURE IN
METC/MTC/MCTC

o Applicability of the 1991 Revised Rules on

Summary Proceedings:
1) FEUD;
o Irrespective of the amount of damages or
unpaid rentals sought.
o If attorney's fees are awarded, not >
P20K.
2) Other civil cases where the total amount of
the plaintiff's claim is not > P10K (exclusive of
interest and costs).
o X: Probate proceedings.
o The only pleadings allowed:

100% UP LAW UP BAROPS 2008 Page 9 of 9