Silliman University College of Law Barlongay and Feria Reminders!!!!! Bar Ops 2003 den !

!Spe"ial Series Remedial Law# 1 of 9 $$$%&' ()at are t)e r*les on t)e +oinder of "a*ses of a"tion, -: A party may in a pleading assert, in the alternative or otherwise, as many causes of action as he may have against the opposing party subject to the following conditions: a) the party joining the cause of action shall comply with the rules on joinder of parties; b) the joinder shall not include special civil actions or actions governed by special rules; c) where the causes of action are between the same parties but pertain to different venues or jurisdictions, the joinder may be allowed in the Regional rial !ourt provided one of the causes of action falls within the jurisdiction of said court and the venue lies therein; and d) where the claims in all the causes of action are principally for recovery of money, the aggregate amount claimed shall be the test of jurisdiction" #$ec" %, Rule &)" 2&' Upon t)e deat) of a party to a pending a"tion. w)at is t)e d*ty of t)e "o*nsel, -: 'henever a party to a pending action dies, and the claim is not thereby e(tinguished, it shall be the duty of his counsel to inform the court within thirty #)*) days after such death of the fact thereof and to give the name and address of his legal representative or representatives" +ailure of the counsel to comply with this duty shall be a ground for disciplinary action #$ection 1,, Rule ))" 3&' ()en t)e defendant dies w)at will )appen to a pending a"tion or "ontra"t*al money "laim, -: 'hen the action is for recovery of money arising from contract, e(press or implied, and the defendant dies before entry of final judgment in the court in which the action was pending at the time of such death, it shall not be dismissed but shall instead allowed to continue until entry of final judgment" A favorable judgment obtained by the plaintiff therein shall be enforced in the manner especially provided in the Rules for prosecuting claims against the estate of a deceased person" #$ection &*, Rule ), Rules of !ourt)" Relate this also to $ection %, Rule ))" Relate this also to $ection %, Rule -,, Rules of !ourt #!laims which must be filed under the notice; if not filed, barred; #e(ceptions) and $ec" 1, Rule -. #Actions which may and which may not be brought against e(ecutor or administrator; wherein money claim cannot be brought against e(ecutor or administrator") /&' -: ()en are t)e R*les on ven*e not appli"a0le, hey are not applicable: 1" /n those cases where a specific rule or law provides otherwise; or &" 'here the parties have validly agreed in writing before the filing of the action on the e(clusive venue thereof" #$ec" 0, Rule 0)

1&' ()at is for*m s)opping, -: here is forum1shopping whenever, as a result of the adverse opinion in one forum, a party see2s a favorable opinion #other than by appeal or certiorari) in another"

Silliman University College of Law Barlongay and Feria Reminders!!!!! Bar Ops 2003 den !Spe"ial Series Remedial Law# & of 9 2&' 3ow is for*m s)opping prevented 0y t)e R*les of Co*rt, -: /t is prevented by the re3uirement that the plaintiff or principal party must e(ecute a certificate of non forum1shopping attached to the pleading" $ection %, Rule ." 4&' Under t)e R*les of Co*rt. appeal may 0e ta5en to t)e Co*rt of -ppeal from +*dgments or final orders of t)e Co*rt of 6a7 -ppeals and from awards. +*dgments. final orders or resol*tions of or a*t)ori8ed 0y any 9*asi +*di"ial agen"y :s*") as t)e Civil Servi"e Commission. Central Board of -ssessment -ppeals. Se"*rities and ;7")ange Commission< in t)e e7er"ise of its 9*asi +*di"ial f*n"tions= ()at is t)e effe"t of t)e appeal on t)e e7e"*tion of t)e award. +*dgment. or final order, -: he appeal shall not stay the award, judgment, final order or resolution sought to be reviewed unless the !ourt of Appeals shall direct otherwise upon such terms as it may deem just" #$ection 1&, Rule 0))" $$$>&' ()at is t)e r*le on priorities in modes of servi"e and filing of pleadings, -: 'henever practicable, the service and filing of pleadings and other papers shall be done personally" 4(cept with respect to papers emanating from the court, a resort to other modes must be accompanied by a written e(planation why the service or filing was not done personally" A violation of this Rule may be cause to consider the paper as not filed #$ec" 11, Rule 1))" ?&' ()at is t)e viatory rig)t of a witness, -: /t is the right of a witness not to be bound by the subpoena or not be compelled to appear" he two instances are: 1) if the witness resides more than 1** 2ms" from his residence to the place where he is to testify by the ordinary course of travel; and &) if he is a detention prisoner, if no permission of the court in which his case is pending was obtained" #$ection 1*, Rule &1) %0&' @isting*is) 0ar 0y prior +*dgment from "on"l*siveness of +*dgment= -: 1" here is bar by prior judgment if all three 5 identities of parties, subject matter and cause of action 5 are present, and there is conclusiveness of judgment if there is no identity of causes of action between the two cases, all other re3uisites being present" &" As to effect, in bar by former judgment, the first judgment constitutes an absolute bar to all matters directly adjudged, as well as matters that might have been adjudged in the first action; whereas in 6conclusiveness of judgment7 the first judgment is conclusive only in matters actively litigated and adjudged in the first action" #$ee $ection 0., Rule )9, 8enalosa vs" ua9on, && 8hil; 8accial vs" 8alermo, -, 8hil") %%&' ()at are t)e gro*nds for t)e ann*lment of +*dgment or final orders and resol*tions, -: 1" e(trinsic fraud &" lac2 of jurisdiction

Silliman University College of Law Barlongay and Feria Reminders!!!!! Bar Ops 2003 den !Spe"ial Series Remedial Law# ) of 9 :owever, e(trinsic fraud is not a valid ground if it was availed of, or could have been availed of, in a motion for new trial or petition of relief #$ec" &, Rule 0.) %2&' ()at is t)e period for filing a petition for "ertiorari. pro)i0ition and mandam*s, -: he petition may be filed not later than ,* days from notice of the judgment, order or resolution sought to be assailed #$ection 0, Rule ,%)" %3&' As pre trial mandatory, -: ;es" 8re1trial is mandatory both in civil cases #$ec" &, Rule 1-) and in criminal cases #$ec" 1," Rule 11-)" $$$%/&' @isting*is) 0etween dismissal of a"tion *pon noti"e 0y plaintiff. and dismissal *pon motion 0y plaintiff= -: a) Dismissal upon notice by plaintiff A complaint may be dismissed by the plaintiff by filing a notice of dismissal at any time before service of the answer or of a motion for summary judgment" <pon such notice being filed, the court shall issue an order confirming the dismissal" <nless otherwise stated in the notice, the dismissal is without prejudice, e(cept that a notice operates as an adjudication on the merits when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim" #$ection 1, Rule 1.) b) Dismissal upon motion of plaintiff 4(cept as provided in $ection 1 of Rule 1., a complaint shall not be dismissed at the plaintiff=s instance save upon approval of the court and upon such terms and conditions as the court deems proper" /f a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff=s motion for dismissal, the dismissal shall be limited to the complaint" he dismissal shall be without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless within fifteen #1%) days from notice of the motion he manifests his preference to have his counterclaim resolved in the same action" <nless otherwise specified in the order, a dismissal under this paragraph shall be without prejudice" A class suit shall not be dismissed or compromised without the approval of the court" #$ection &, Rule 1.) $$$%1&' ()at is t)e Omni0*s Botion R*le, -: A motion attac2ing a pleading, order, judgment or proceeding shall include the objections then available, and all objections not so included shall be deemed waived #$ection -, Rule 1%, Rules of !ourt)" he e(ceptions to this rule are:

Silliman University College of Law Barlongay and Feria Reminders!!!!! Bar Ops 2003 den !Spe"ial Series Remedial Law# 0 of 9 a) b) c) 'hen it appears from the pleadings or the evidence on record that the court has no jurisdiction over the subject matter; hat there is another action pending between the same parties for the same cause; or hat the action is barred by a prior judgment or by the statute of limitations" /n these cases, the court shall dismiss the claim" #$ection 1, Rule 9)"

%2&' @oes a mortgage "reditor waive its remedy to fore"lose t)e real estate mortgage "onstit*ted over a t)ird party mortgagorCs property sit*ated in t)e D)ilippines 0y filing an a"tion for t)e "olle"tion of t)e prin"ipal loan 0efore foreign "o*rts, -' ;es" >y e(pediency of filing four civil suits before foreign courts, necessarily abandoned the remedy to foreclose the real estate mortgages constituted over the properties of third party mortgagor and herein private respondent" ?oreover, by filing four civil actions and by eventually foreclosing e(trajudicially the mortgages, petitioner #mortgage1creditor) in effect transgressed the rules against splitting a cause of action well enshrined in the jurisprudence and statute boo2s" ") :Ban5 of -meri"a. E6 F S- vs= -meri"an Realty Corporation. 32% SCR-. B*ena. G=< %4&' As t)e t)ird party mortgagor entitled to a"t*al or "ompensatory damages 0ro*g)t a0o*t 0y t)e fore"los*re and event*al sale of t)e property against t)e mortgage "reditor w)o split )is "a*se of a"tion, -' ;es, third party mortgagor is entitled to the award of damages 5 actual or compensatory inasmuch as the act of the mortgage creditor in e(trajudicially foreclosing the real estate mortgages constituted a clear violation of the rights of the third party mortgagor" #/n this case the value awarded was 899,***,***"**, the appraised value of the )9 hectare land foreclosed" ?oreover, third1party mortgagor was granted a suspension of time to redeem the property from the buyer, the latter bought the property only at 8)9,***,***"**") :Ban5 of -meri"a. E6 F S- vs= -meri"an Realty Corporation. 32% SCR-. B*ena. G=< %>&' Can t)e Betropolitan 6rial Co*rt :B6C< award moral and e7emplary damages in an *nlawf*l detainer s*it, -' he 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" @ther damages must be claimed in an ordinary action" #+elisilda vs" Aillanueva, 1)9 $!RA)" >ut in a 6far reaching decision7 the !ourt in Drogressive @evelopment Corporation vs= Co*rt of -ppeals ruled that in can B@' allow the award even for moral and e(emplary damages in >@ : forcible entry and unlawful detainer" # see $ection 1, Rule .*)" All cases of forcible entry or unlawful detainer shall be filed before the ? ! which shall include not only the plea for restoration of possession but also all claims for

Silliman University College of Law Barlongay and Feria Reminders!!!!! Bar Ops 2003 den !Spe"ial Series Remedial Law# % of 9 damages and costs arising therefrom" @therwise e(pressed no claim for damages arising out of forcible entry or unlawful detainer may be filed separately and independently of the claim for restoration of possession" :Drogressive @evelopment Corporation vs= Co*rt of -ppeals. 30% SCR-. Bellosillo. G=< %?&' 6)e respondents were awarded owners)ip of t)e lot in 9*estion in %?4? 0y t)e trial "o*rt= 6)e writ of e7e"*tion t)o*g) 0e"ame stale 0y operation of law after 1 years w)en it was not served on petitioners= On t)e 2t) year. petitioners re entered t)e lot. t)*s. respondents filed wit) t)e trial "o*rt a motion for "ontempt for re o""*pying t)e lot in 9*estion= 6)e trial "o*rt "onvi"ted t)e petitioners and senten"ed t)em to % mont) imprisonment and a fine of D%00=00 and to va"ate t)e premises= (as t)e "onvi"tion proper, Hive yo*r reasons= -' Bo, the conviction was not proper" he rule is that the court could issue a writ of e(ecution by ?@ /@B within % years from finality of the decision" A writ of e(ecution issued after the e(piration of the period is B<CC and A@/D" hus, there can be no contempt for disobedience of an order issued without authority, or which is void for want of jurisdiction" 8etition is granted; petitioners ac3uitted" #6erry vs= Deople 3%/ SCR-. Dardo G=<
Eote: After % years, there is a need for the interested party to file an independent action for revival of judgment" he judgment may be enforced after the lapse of this period and before the same is barred by statute of limitations, by instituting an ordinary civil action" he reason is that after the lapse of this period #% years), the judgment is reduced to a mere right of action, which judgment must be enforced, as all other ordinary actions by institution of a complaint in the regular form"

20&' An a "riminal "ase. w)en t)e trial "o*rt denied t)e motion of dem*rrer to eviden"e of t)e a""*sed. does t)e R*les allow "ertiorari to t)e Co*rt of -ppeals to ")allenge said interlo"*tory order, -' Eenerally no, but based on two very e(ceptional cases of COB;L;C vs= C-. 22? SCR- and H*ti0 vs= C-. 3%2 SCR- the !ourt ruled in the affirmative" /n Eutib vs" !A, $upreme !ourt ruled that 6according to the !A, certiorari does not lie to challenge the trial court=s interlocutory order denying a motion to dismiss by way of demurrer to the evidence" According to the !A, the proper remedy was for the accused to present his evidence during the trial after which courtFwould then render judgment" /f it is a verdict of ac3uittal, the case ends there" >ut if it is one of conviction, then appeal is the proper recourse" >ut the rule is B@ absolute and admits of an 4G!48 /@B" hus, where in the instant case, the denial of the motion to dismiss by the trial court was tainted with grave abuse of discretion amounting to lac2 of jurisdiction, the aggrieved party may assail the order of denial on !4R /@RAR/" 2%&' 6)e respondent 0an5 filed a "omplaint to "olle"t a s*m of D%?0.321 w)i") is t)e 0alan"e of t)e p*r")ased "ar val*ed more t)ppppp55****4an D200.000 :now

Silliman University College of Law Barlongay and Feria Reminders!!!!! Bar Ops 2003 den !Spe"ial Series Remedial Law# , of 9 D/00.000<= 6)e "ar was *sed to se"*re t)e loan *nder a ")attel mortgage "ontra"t= 6)ereafter t)e "o*rt iss*ed a writ of replevin on t)e "ar= @oes t)e B6C )ave +*risdi"tion over t)e "omplaint w)ere t)e s*m to 0e "olle"ted is D%?0.321 0*t t)e val*e of t)e "ar s*0+e"t of replevin is more t)an D200.000 :now D/00.000<, -' ;es" he jurisdiction of the ? ! is determined by the amount of the claim alleged in the complaint, not by the value of the chattel sei9ed in the ancillary #replevin) proceedings" Although the value of the vehicle sei9ed pursuant to the writ of replevin may have e(ceeded 8&**,*** #now 80**,***), that fact does B@ deprive the trial court of its jurisdiction over the case" After all, the vehicle was merely the subject of a chattel mortgage that had been used to secure petitioner=s loan" /n any case, private respondents are entitled only to the amount owed them" he e(cess of the proceeds of the sale of the mortgage property shall be returned to petitioners" :Fernande8 vs= Anternational Corporate Ban5. 3%2 SCR-. Dangani0an. G=< Bote: 8er Hustice +eria, the cases of Seno vs= Destolante :%03 D)il< and Hood @evelopment Corporation vs= G*dge 6*taan :43 SCR-< are the better rule" /n the two cited cases, the decisions pertain to foreclosure of chattel mortgage where the ruling were that the value of the chattel mortgaged and the debt must be within the jurisdiction of the ? !" 22&' ;n*merate instan"es w)en e7e"*tion of +*dgment may 0e ref*sed= -' !iting Cimpin vs" /A!, these rare instances are: a) writ of e(ecution varies with judgment; b) there has been change by the parties ma2ing e(ecution ine3uitable or unjust; c) e(ecution is sought on e(empt property; d) it appears that the controversy has never been submitted to the judgment of the court; e) terms of the judgment are not clear enough; @R f) writ of e(ecution is improvidently issued; or defective in substance; or issued to wrong party or writ issued without authority; or judgment has been satisfied" :Re0*riano vs= C-. 30% SCR-. B;E@OI-. G=< 23&' Bay t)e writ of e7e"*tion 0e validly 9*as)ed on t)e 0asis t)at t)e +*dgment o0ligee "orporation )ad 0een dissolved prior to t)e finality of t)e +*dgment. it appearing t)at more t)an 3 years from dissol*tion lapsed and t)at no tr*stee )as 0een e7pressly appointed, -' Bo" here is no reason why the suit should not be allowed to proceed e(ecution" /n the absence of any trustee designated after the dissolution of a corporation, the !@<B$4C who prosecuted and defended the interest of the corporation and who in fact appeared in behalf of the corporation may be considered a R<$ 44 of the corporation at least with respect to the matter in litigation only"

Silliman University College of Law Barlongay and Feria Reminders!!!!! Bar Ops 2003 den !Spe"ial Series Remedial Law# . of 9 $ince the law specifically allows a trustee to manage the affairs of the corporation in li3uidation, any supervening fact such as dissolution of the corporation, repeal of a law, or any fact of similar nature would B@ serve as an effective bar to the enforcement of such right" :Re0*riano vs= C-. 30% SCR-. B;E@OI-. G=< 2/&' ()ere -llied -gri0*siness fails to answer a re9*est for admission :R*le 22< served 0y C)erry Jalley. a nonresident foreign "orporation. as5ing for admission of all material allegations of t)e "omplaint. w)at is C)erry JalleyCs 0est pro"ed*ral re"o*rse, -' !herry Aalley should file a motion for summary judgment because the material allegations of the complaint are not disputed by Allied Agribusiness" #ACC/4D) /n this case, ACC/4D did not file an answer to the re3uest for admission, it believing that the re3uest for admission was improper and that the issues raised in the re3uest were irrelevant and not important" >ut the trial court ordered ACC/4D to answer the re3uest" <pon failure of ACC/4D to submit a sworn answer, !herry Aalley filed a motion for summary judgment on the basis that there was already an implied admission on matters re3uested for admission pursuant to Rule &, of the Rules of !ourt" he trial court granted the motion" he $! sustained the trial court" :-llied -gri0*siness @evelopment Corp= v=s C-. %2K/K?>. Bellosillo. G=< 21&' ()i") party )as t)e 0*rden of affirmative a"tion to avoid admission in a re9*est for admission, A: he burden of affirmative action is on the party upon whom notice is served #ACC/4D) to avoid the admission rather than upon the party see2ing the admission #!:4RR; AACC4;)" 22&' Bay -llied -gri0*siness s*""essf*lly imp*gn t)e legal "apa"ity to s*e of C)erry Jalley on t)e gro*nd t)at t)e latter is an *nli"ensed foreign "orporation despite t)e "ontra"t t)e parties entered into, -' Bo" ACC/4D is estopped from challenging or 3uestioning the personality of !herry Aalley because it ac2nowledged the latter by entering into a contract with it" 24&' As Se"tion 2 of R*le 3> :petition for relief of +*dgment d*e to fra*d. mista5e. a""ident. e7"*sa0le negligen"e< appli"a0le to "riminal "ases, -' ;es, in the very e(ceptional case of Bas"o vs= Co*rt of -ppeals. 322 SCR-. Lap*nan. G= Bote here that it is not the judgment of conviction itself that is being appealed from but an appeal from the trial court=s denial of petitioner=s petition for relief from judgment" #<nder the 199. Rules, it is B@ appealable but shall be brought to appellate court under Rule ,%)" >ut prior to the 199. Rules, the denial of petition for relief is appealable to the !A)" >asco was convicted before the trial court for 3ualified illegal possession of firearm, and was sentenced to reclusion perpetua" :is counsel filed a pro1forma motion for reconsideration" hus, the R ! ordered his incarceration" >asco applied for relief of the order" /t was denied" >asco appealed to the !A the order of denial of petition for

Silliman University College of Law Barlongay and Feria Reminders!!!!! Bar Ops 2003 den !Spe"ial Series Remedial Law# - of 9 relief but the !A dismissed it for lac2 of jurisdiction contending that a reclusion perpetua judgment is reviewable by the $! and per $! !ircular Bo" &19*, the !A should not certify it to $!, but to dismiss" 8er $!, the !A erred because what was appealed from was not the conviction itself for reclusion perpetua but the denial of petition for relief from judgment, which under the Rules at that time is appealable to the !A" 8er H" +eria, the application of the Rule in criminal case is very e(ceptional" /ndeed, $! stressed that because >asco was sentenced to reclusion perpetua, the Rules was rela(ed as to him" 2>&' ()en is t)e pres"riptive period of a revived +*dgment "o*nted. from date of original +*dgment or from date of new +*dgment, -' An action to enforce a revived judgment prescribes in ten #1*) years from the date of revived judgment became final, B@ from the date the original judgment became final" :DEB vs= Bondo". %/ SCR-. Beng8on. G=< 2?&' Bay a revived +*dgment 0e itself revived, -' ;es" A revived judgment may itself be revived" :DEB vs= Bondo"< 30&' ()at is t)e nat*re of a revived +*dgment, -' A judgment rendered on a complaint for the revival of a previous judgment is a B4' judgment, and the rights of the plaintiff rests on the B4' judgment, not on the previous one" 3%&' On G*ne 2?. %?/?. DEB o0tained a +*dgment against Bondo" for D%0.2>? pl*s interest= 6)is +*dgment. )owever. was never e7e"*ted= -fter 1 years. DEB revived said +*dgment in a new "ivil a"tion and trial "o*rt awarded D%2.>/% pl*s interest= Eeit)er was t)is +*dgment enfor"ed d*ring t)e five years t)ereafter= On G*ne 4. %?22. DEB instit*ted anot)er a"tion to revive t)e +*dgment 0*t t)is time. t)e trial "o*rt dismissed it on gro*nds of pres"ription= (as t)e dismissal proper, ;7plain= -' $ee above e(planation" 8er H" +eria, the Bew Rules revert bac2 to the principle in 8B> vs" >ondoc, this is the controlling doctrine now" DEB vs= Bondo" :revived< %/ SCR- $$$:Feria Favorite< L*8on S*rety vs= Co*rt of -ppeal. %3% SCR- #abandoned) III wo cases, possible >AR Juestion" :ow is a revived judgment enforceableK <nder the original ruling of the $! in 8B> vs" >ondoc, that revived judgment can be enforced by motion within five years from entry, and if not e(ecuted, by another action again within the ne(t five years" And theoretically, that could be done with the second revived judgment, as long as the judgment debtor is alive" he moment the judgment debtor dies, the only way to enforce the judgment is by filing a money claim"

Silliman University College of Law Barlongay and Feria Reminders!!!!! Bar Ops 2003 den !Spe"ial Series Remedial Law# 9 of 9 hat is how it is revived, not by filing another action" And it should be filed within the period for filing a money claim" >ut, there was one case, Cu9on $urety vs" !A, where a division of the $! held that the revived judgment could only be enforced by motion within a period of five years" >ut it could no loner be revived again" he reason for that decision was, that the judgment obligee should ta2e the necessary steps to enforce the judgment and not to allow too much time to elapse" @n the other hand, the original ruling and now the present rule, also see2s to guard against the efforts of the judgment debtor or obligor to hide his property" he new rule says that as long as the judgment obligee is alert, he can still revive, even twice