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Discuss the following doctrine: motion attacking a pleading, order,

judgment, or proceeding shall include all


1. Negative Pregnant is a form of
objections then available, and all
negative expression which carries with it
objections not so included shall be
an affirmation or at least an implication
deemed waived. (Rule 15, Section 8)
of some kind favorable to the adverse
4. Residual Jurisdiction Rule Residual
party. It is a denial pregnant with an
power/jurisdiction of the court after
admission of the substantial facts alleged
losing jurisdiction but prior to the
in the pleading. Where a fact is alleged
transmittal of the original record or
with qualifying or modifying language
record on appeal.
and the words of the allegation as so
qualified or modified are literally denied,
has been held that the qualifying
The filing of the supersedeas bond to stay
circumstances alone are denied while
the execution of the judgment will not
the fact itself is admitted. Rule 8, Sec. 10;
prosper. To stay the immediate execution
Republic of the Philippines v.
of judgment in ejectment proceedings, the
Sandiganbayan, G.R. No. 152154, July
defendant-appellant must a.) perfect his
13, 2003)
appeal, b.) file a supersedeas bond, and c.)
2. Fresh Period Rule liberal grant of a
periodically deposit the rentals falling due
fresh period of 15 days within which the
during the pendency of the case. The losing
aggrieved party in the case may file a
party, Y, did not meet the requirement in
notice of appeal in the Regional Trial
staying the execution of the judgment when
Court, counted from receipt of the
he failed to interpose his appeal within the
order dismissing a motion for new trial
sanctioned period. Even if appeal has been
or reconsideration. Applicable to Rule
perfected and a supersedeas bond has been
40 governing appeals from the
filed but the accruing rentals are not duly
Municipal Trial Courts to the Regional
deposited, immediate restoration of the
Trial Court; Rule 42 on petitions for
premises may still be obtained as the
review from the Regional Trial Courts to
supersedeas bond answers only for the past
the Court of Appeals; Rule 43 on
rentals as fixed in the judgment of the
appeals from quasi-judicial agencies
inferior court.
(now, except the Court of Tax Appeals)
to the Court of Appeals; and Rule 45
governing appeals by certiorari to the
Yes, the action of XYZ bank to foreclose
Supreme Court. This new rule thereby
the house of W will prosper. Under Rule 39,
makes the appeal period uniform by
Section 13, subsection a, the judgment
being invariably counted from receipt of
obligors family home as provided by law,
the order denying the motion for new
or the homestead in which he resides, and
trial, motion for reconsideration or any
land necessarily used in connection
final order or resolution.
therewith is exempted from execution.
3. Omnibus Motion Rule Subject to
However, in the last paragraph of the same
the provisions of Section 1 of Rule 9, a
section, it provides that no article or species
of property shall be exempt from execution Rule 39, Section 1. Execution shall issue as
issued upon a judgment recovered for its a matter of right, on motion, upon a
price or upon a judgment of foreclosure of judgment or order that disposes of the
a mortgage thereon. Although Ws house is action or proceeding upon the expiration of
generally exempted from execution, the the period to appeal therefrom if no appeal
exemption cannot be claimed if the has been duly perfected.
judgment is for the recovery of the unpaid
price of the article involved or the
foreclosure of a mortgage thereon. Rule 39, Section 2. On motion of the
prevailing party with notice to the adverse
party filed in the trial court while it has
Rule 39, Section 4. Judgments not stayed by jurisdiction over the case and is in
appeal. Judgments in actions for possession of either the original record or
injunction, receivership, accounting and the record on appeal, as the case may be, at
support, and such other judgments as are the time of the filing of such motion, said
now or may hereafter be declared to be court may, in its discretion, order execution
immediately executory, shall be enforceable of a judgment or final order even before the
after their rendition and shall not be stayed expiration of the period to appeal.
by an appeal taken therefrom, unless
otherwise ordered by the trial court.
Rule 39, Section 8. If the judgment obligor
When does a judgment for support become dies after the entry of judgment but before
final? levy on his property, execution will issue if
it be for the recovery of real or personal
- Generally, only judgments and final orders property. However, if the judgment is for a
or resolutions may be executed. The sum of money, and the judgment obligor
exceptions are orders granting support dies before levy has been made on his
pendente lite which can be executed even if property, such judgment cannot be
the main case is still pending. Support enforced by writ of execution but must be
pendente lite is contained generally in an filed as a claim against his estate. If he dies
interlocutory order and not a judgment. after levy has been made, the execution sale
This imprecision in terminology may, may proceed.
however, be disregarded, the important
consideration being that these reliefs, as
well as others as may hereafter be so Landlord, a resident of Quezon City,
provided, shall be enforceable upon their entered into a lease contract with Tenant, a
rendition and shall not be stayed by an resident of Marikina City, over a residential
appeal taken therefrom, unless otherwise house in Las Pias City. The lease contract
ordered by the court. provided, among others, for a monthly
rental of P25,000.00, plus ten percent (10%)
interest rate in case of non-payment on its
due date. Subsequently, Landlord migrated
to the United States of America (USA) but Atencio, 28 February 1959; Sy Oh v.
granted in favor of his sister Maria, a special Garcia, 30 June 1969).
power of attorney to manage the property
and file and defend suits over the property There is a question of law in a given case
rented out to Tenant. Tenant failed to pay when the doubt or difference arises as to
the rentals due for five (5) months. Maria what the law is on a certain state of facts,
asks your legal advice on how she can and which does not call for an examination
expeditiously collect from Tenant the of the probative value of the evidence
unpaid rentals plus interests due. (6%) presented by the parties-litigants; there is a
(A)What judicial remedy would you question of fact when the doubt or
recommend to Maria? difference arises as to the truth or the
Answer: The judicial remedy that I falsehood of the facts alleged.
would recommend to Maria is to file a
collection suit for the P125,000 rentals Bayani, an overseas worker based in Dubai,
in arrears and the P12,500 interest due. issued in favor of Agente, a special power
The remedy would be expeditious since of attorney to sell his house and lot. Agente
it would be governed by the Rules on was able to sell the property but failed to
Summary Procedure as the amount of remit the proceeds to Bayani, as agreed
the demand, excluding interest, does not upon. On his return to the Philippines,
exceed P200,000. Bayani, by way of a demand letter duly
(B) Where is the proper venue of the judicial received by Agente, sought to recover the
remedy which you recommended? amount due him. Agente failed to return the
Answer: The proper venue of the collection amount as he had used it for the
suit would be in Marikina City, where Tenant construction of his own house. Thus,
resides. Under the Rules of Civil Procedure, Bayani filed an action against Agente for
venue in personal actions is with the residence sum of money with damages. Bayani
of either the plaintiff or the defendant, at the subsequently filed an ex-parte motion for
plaintiffs election. Since the Plaintiff does not the issuance of a writ of preliminary
reside in the Philippines, venue may be laid attachment duly supported by an affidavit.
only in Marikina City where the defendant The court granted the ex-parte motion and
Tenant resides. issued a writ of preliminary attachment
upon Bayanis posting of the required bond.
(C) If Maria insists on filing an ejectment Bayani prayed that the courts sheriff be
suit against Tenant, when do you reckon deputized to serve and implement the writ
the one (1)-year period within which to of attachment. On November 19, 2013, the
file the action? Sheriff served upon Agente the writ of
Answer: If Maria insists on filing an attachment and levied on the latters house
ejectment suit against Tenant, the one- and lot. On November 20, 2013, the Sheriff
year period within which to file the served on Agente summons and a copy of
action shall be reckoned from the the complaint. On November 22, 2013,
expiration of 5- days from notice of the Agente filed an Answer with Motion to
last demand to pay and vacate. (Cruz v. Discharge the Writ of Attachment alleging
that at the time the writ of preliminary Problem: Plaintiff files a case for specific
attachment was issued, he has not been performance of a contract to sell involving
served with summons and, therefore, it was P50,000. Where do you file?
improperly issued. (4%) Answer: RTC.
(A)Is Agente correct?
(B) Was the writ of preliminary attachment Problem: Plaintiff files a case for specific
performance of a contract to sell involving
properly executed?
P50,000 with alternative prayer of P50,000
ANSWERS: worth of damages. Where do you file?
Answer: Check jurisprudence. There are 2
(A) No, Agente is not correct. Under the Rules scenarios:
of Civil Procedure, a writ of attachment may
issue even before service of summons upon the (1) If the alternative prayer can be granted
defendant. (S2 R57). without granting the main prayer, the case
(B) No, the writ of preliminary attachment not is capable of pecuniary estimation and
properly executed. Under S5 R57, no levy on should therefore be filed in the MTC (since
preliminary attachment shall be enforced the amount of P 50,000.00 is within the
unless there is prior or simultaneous service of jurisdictional limits of the MTC).
the summons and the accompanying papers.
(S5 R The Supreme Court has held that (2) However, if the alternative
subsequent service of summons will not cure prayer cannot be granted without first
determining the main prayer, the case
the irregularity that attended the enforcement
remains incapable of pecuniary estimation,
of the writ (Onate v. Abrogar, 23 February and therefore the case must be filed in the
1995). Here the sheriff levied upon the house RTC.
and lot prior to the service of the summons and
the complaint upon Agente. Hence the writ of A contract is renewable for 5
preliminary attachment was not properly years. Plaintiff files an ejectment suit, alleging
executed. The subsequent service of summons that the lease has expired with the MTC. The
and the complaint did not cure the irregularity defendant alleges as an affirmative defense that
in the enforcement of the writ. he is entitled to renewal. The defendant files a
Motion to Dismiss on the ground of lack of
When is the subject matter incapable of jurisdiction of the MTC alleging that the RTC
pecuniary estimation? has jurisdiction since the subject matter is
incapable of pecuniary estimation. According
Problem: Plaintiff files an action to to Prof. Bautista, the Supreme Court said that
rescind the contract, where do you file? if it is an interpretation of court, then the
Answer: RTC since it is not capable of subject matter is not subject to pecuniary
pecuniary estimation. estimation.
According to Prof. Bautista, unlawful
detainer is effectively a rescission of a
contract. However, it must still be brought in Q : Action for rescission of K with prayer
the MTC. for damages amounting to P100T. What
court has jurisdiction?
A : RTC
jurisdiction of the RTC it is said that the subject
Q : What if damages sought is only P10T? matter of litigation cannot be determined by
A : RTC. Prayer for damages is incidental to complaint. Now where the subject matter is the
action. rescission of mortgage, it is not capable of
pecuniary estimation. If your cause of action is
Q : What if action for rescission or P10T specific performance or rescission together
damages? with damages, there are 2 bases for
A : MTC. The alternative prayer moots lack of determining jurisdiction.
pecuniary estimation.

Q : What if action is for specific Q : Action filed with the RTC to fix a period
performance? for K of lease filed by the lessee against his
A : RTC because incapable of pecuniary lessor. Defendant-lessor counterclaims for
estimation. unlawful detainer on the ground that the
Q : What is meant by sec 19 (1) of BP 129 in term of the lease had expired for which
which the subject of litigation is incapable of prior demand is not necessary when the
pecuniary estimation? Should not the ground for ejectment is expiration of a
jurisdiction be determined by the allegations in lease term. Can the RTC entertain the
the complaint and answer? Can you determine counterclaim?
the subject matter of the litigation from the A : No. Rule 6, Sec. 7 provides that a
complaint alone or also by consideration of all compulsory counterclaim, to be cognizable,
pleadings? must be within the jurisdiction of the court
A : Jurisdiction over the subject matter is both as to the amount and
conferred by law. It is determined by the the nature thereof. An unlawful detainer
amount pleaded in the complaint under the action is within the exclusive original
totality ruling. Attys fees are included in the jurisdiction of the MTC. Therefore, the RTC
determination of the jurisdictional amount. must dismiss the counterclaim. (Double-check
However, interest and cost of suit are excluded. this, however.)

Q : The political counselor of the Cuban


Q : An action for unlawful detainer on the Embassy is renting a house for his personal
ground of expiration of lease. The K of use and that of his family. Monthly rent of
lease contained a renewal clause which P40T. in arrears for 3 months. Action for
said that this lease is renewable for a unlawful detainer to eject them. In what
fixed term or for another year upon mutual court should the action be brought?
agreement of the parties. There is a
principle in law that provisions such as this A : In MTC. BP 129 sec 33 (2) . The political
mean that it is renewable upon the option counselor is not a public minister or consul
of the lessee. The defendant moved to hence Art 8 of constitution is not applicable.
dismiss on the ground that the transaction
is not capable of pecuniary estimation. Q : Is there any decision of the MTC which
How should the court rule? can be appealed directly to the CA?
A : When the subject matter of compromise is A : No. Rule 40, Sec. 1 provides that appeals
the expiration of the K, it is not capable of from judgments and final orders of the MTC
pecuniary action. If you read BP 129, the
are taken to the RTC exercising jurisdiction Court (RTC) an action for rescission of
over the area to which said MTC pertains. contract with damages and payment of
accrued rentals as of June 30, 2013. (A) Can
Q : What court has jurisdiction over Kin Il Chong move to dismiss the
guardianship cases? complaint on the ground that the RTC is
A : RTC without jurisdiction since the amount
claimed is only P300,000.00?
Q : Action for unlawful detainer to eject
(B) If the rentals accrued during the lifetime of
tenant and recover rentals due of more than
P120T. Even before the tenant could be Prince Chong, and King Kong also filed the
served summons, he voluntarily left the complaint for sum of money during that
place. When he received the summons he time, will the action be dismissible upon
filed a motion to dismiss. Case was filed in Prince Chongs death during the pendency
the MTC. Decide. of the case?
A : Motion is denied. The jurisdiction of a
court whether in criminal or civil cases, once
attached cannot be ousted by subsequent ANSWERS: (A) No, Kin II Chong cannot
happenings or events, although of a character move to dismiss the complaint on the ground
which would have prevented jurisdiction from that the RTC is without jurisdiction since the
attaching in the first instance. amount claimed is only P300,000. Under B.P.
Blg. 129, the RTC has original and exclusive
Is it really true that the parties cannot jurisdiction over actions incapable of pecuniary
confer jurisdiction on a court? estimation. Here the action is for rescission
- look at Tijam vs Sibonghanoy; after trial which is incapable of pecuniary estimation.
before the RTC then appeal to CA, at the The P300,000 accrued rentals is only incidental
CA level, defendant questioned jurisdiction to the main purpose of the action which is to
of RTC; CA used principle of latches rescind the lease contract.
applied to estop the defendant from raising
the issue of lack of jurisdiction (B) No, the action will not be dismissible upon
Prince Chongs death during the pendency
Prince Chong entered into a lease contract of the case. Under S20 R3, when the action
with King Kong over a commercial is on a contractual money claim and the
building where the former conducted his defendant dies before entry of final
hardware business. The lease contract judgment, the action shall not be dismissed
stipulated, among others, a monthly rental but shall instead be allowed to continue
of P50,000.00 for a four (4)-year period until entry of final judgment. Here the
commencing on January 1, 2010. On action is on a contractual money claim, that
January 1, 2013, Prince Chong died. Kin Il is, a claim for rentals based on a lease
Chong was appointed administrator of the contract. Hence it shall be allowed to
estate of Prince Chong, but the former continue until final judgment. (S20 R3, S5
failed to pay the rentals for the months of R86).
January to June 2013 despite King Kongs
written demands. Thus, on July 1, 2013, Which of the following decisions may be
King Kong filed with the Regional Trial appealed directly to the Supreme Court
(SC)? (Assume that the issues to be raised ANSWER: No, there is no violation of the rule
on appeal involve purely questions of law) against forum shopping. Forum shopping
(1%) applies where two or more initiatory pleadings
were filed by the same party. This is discernible
(A) Decision of the Regional Trial Court (RTC)
from the use of the phrase commenced any
rendered in the exercise of its appellate
action or filed any claim in S5 R7. Here the
jurisdiction.
first case involves the filing by Ms. Dumpty of
(B) Decision of the RTC rendered in the a notice of appeal which is not an initiatory
exercise of its original jurisdiction. pleading. Hence there is no forum shopping.
(C) Decision of the Civil Service Commission.
Mr. Avenger filed with the Regional Trial
(D) Decision of the Office of the President. Court (RTC) a complaint against Ms. Bright
ANSWER: (B) for annulment of deed of sale and other
documents. Ms. Bright filed a motion to
Note: In an appeal from RTC judgment in the dismiss the complaint on the ground of lack
exercise of its appellate jurisdiction, the appeal of cause of action. Mr. Avenger filed an
should be to the CA even if the questions are opposition to the motion to dismiss. State
only legal. Hence A should be excluded. (S2[c] and discuss the appropriate
R42). XXIII. remedy/remedies under each of the
following situations: (6%)
(A) If the RTC grants Ms. Brights motion to
Mr. Humpty filed with the Regional Trial dismiss and dismisses the complaint on the
Court (RTC) a complaint against Ms. ground of lack of cause of action, what will be
Dumpty for damages. The RTC, after due the remedy/remedies of Mr. Avenger?
proceedings, rendered a decision granting (B) If the RTC denies Ms. Brights motion to
the complaint and ordering Ms. Dumpty to dismiss, what will be her remedy/remedies?
pay damages to Mr. Humpty. Ms. Dumpty (C) If the RTC denies Ms. Brights motion to
timely filed an appeal before the Court of dismiss and, further proceedings, including
Appeals (CA), questioning the RTC trial on the merits, are conducted until the RTC
decision. Meanwhile, the RTC granted Mr. renders a decision in favor of Mr. Avenger,
Humptys motion for execution pending what will be the remedy/remedies of Ms.
appeal. Upon receipt of the RTCs order Bright?
granting execution pending appeal, Ms. ANSWERS: (A) If the RTC grants Ms.
Dumpty filed with the CA another case, this Brightss motion to dismiss, the remedies of
time a special civil action for certiorari Mr. Avenger are: (a) File a motion for
assailing said RTC order. Is there a violation reconsideration under Rule 37.
of the rule against forum shopping (b) Re-file the complaint. The dismissal does
considering that two (2) actions emanating not bar the re-filing of the case (S5 R16).
from the same case with the RTC were filed (c) Appeal from the order of dismissal. The
by Ms. Dumpty with the CA? Explain. (4%) dismissal order is a final order as it completely
disposes of the case; hence it is appealable.
(d) File an amended complaint as a matter of complaint for ejectment with the Municipal
right curing the defect of lack of cause of action Trial Court (MTC), alleging that she is the true
before the dismissal order becomes final. This owner of the land as evidenced by her
is because a motion to dismiss is not a certificate of title and tax declaration which
responsive pleading; hence Mr. Avenger can showed the assessed value of the property as
amend the complaint as a matter of right. (S2 P21,000.00. On the other hand, John refuted
R10). Estrellas claim of ownership and submitted in
evidence a Deed of Absolute Sale between him
(B) If the RTC denies Ms. Brights motion to and Estrella. After the filing of Johns answer,
dismiss, her remedies are: the MTC observed that the real issue was one
(a) File a motion for reconsideration. of ownership and not of possession. Hence,
(b) Proceed to trial and if she loses, appeal and the MTC dismissed the complaint for lack of
assign the failure to dismiss as a reversible jurisdiction. On appeal by Estrella to the
error. (c) File a special civil action for certiorari Regional Trial Court (RTC), a full-blown trial
and/or mandamus if the denial of the order to was conducted as if the case was originally filed
dismiss is made with grave abuse of discretion with it. The RTC reasoned that based on the
amounting to lack of or excess of jurisdiction. assessed value of the property, it was the court
of proper jurisdiction. Eventually, the RTC
(C) If the RTC renders a decision in favor of rendered a judgment declaring John as the
Mr. Avenger, Ms. Brights remedies are: owner of the land and, hence, entitled to the
(a) File a motion for reconsideration or new possession thereof. (4%)
trial under Rule 37. (A) Was the MTC correct in dismissing the
(b) File an appeal to the Court of Appeals complaint for lack of jurisdiction? Why or why
under Rule 41. not?
(c) File an appeal to the Supreme Court under (B) Was the RTC correct in ruling that based
Rule 45 if the appeal will raise only questions on the assessed value of the property, the case
of law. was within its original jurisdiction and, hence,
(d) File a petition for relief from judgment it may conduct a full-blown trial of the
under Rule 38. appealed case as if it was originally filed with it?
(e) File an action for annulment of judgment Why or why not?
under Rule 47 on the ground of extrinsic fraud
or lack of jurisdiction. ANSWERS: (A) No, the MTC was not correct
in dismissing the case for lack of jurisdiction.
Estrella was the registered owner of a huge The Supreme Court has held that an allegation
parcel of land located in a remote part of their of ownership as a defense in the answer will
barrio in Benguet. However, when she visited not oust the MTC of jurisdiction in an
the property after she took a long vacation ejectment case. (Subano v. Vallecer, 24 March
abroad, she was surprised to see that her 1959). What determines subject-matter
childhood friend, John, had established a jurisdiction is the allegations in the complaint
vacation house on her property. Both Estrella and not those in the answer. Furthermore, the
and John were residents of the same barangay. MTC is empowered under S16 R70 to resolve
To recover possession, Estrella filed a
the issue of ownership, albeit for the purpose she was not authorized to do so. Sheriff Pluto
only of resolving the issue of possession. requested Scylla for the email address and fax
number of Charybdis which the latter readily
(B) No the RTC was not correct in ruling that gave. Sheriff Pluto, in his return of the
the case was within its original jurisdiction and summons, stated that "Summons for Scylla was
that hence it may conduct a full-blown trial of served personally as shown by her signature on
the appealed case as if it were originally filed the receiving copy of the summons. Summons
with it. Under S8 R40, if an appeal is taken on Charybdis was served pursuant to the
from an MTC order dismissing a case for lack amendment of Rule 14 by facsimile transmittal
of jurisdiction without a trial on the merits, the of the summons and complaint on defendant's
RTC on appeal may affirm the dismissal order fax number as evidenced by transmission
and if it has jurisdiction thereover, try the case verification report automatically generated by
on the merits as if the case was originally filed the fax machine indicating that it was received
with it. Here the RTC did not have jurisdiction by the fax number to which it was sent on the
over the case since it is an ejectment suit date and time indicated therein." Circe, sixty
cognizable exclusively by the MTC. The (60) days after her receipt of Sheriff Pluto's
assessed value of the land is irrelevant for the return, filed a Motion to Declare Charybdis in
purpose of determining jurisdiction in default as Charybdis did not file any responsive
ejectment suits and would not oust the MTC pleading.
of jurisdiction in the same manner as a.) Should the court declare Charybdis in
allegations of ownership would not oust the default? (2%) Scylla seasonably filed her answer
MTC of jurisdiction. The RTC should have setting forth therein as a defense that
reversed the dismissal order and remanded the Charybdis had paid the mortgage debt.
case to the MTC for further proceedings. (S8 b.) On the premise that Charybdis was properly
R40). Note: Utmost liberality should be given declared in default, what is the effect of Scylla's
to the examinee on this question as it does not answer to the complaint?
appear to be within the coverage of the
remedial law examination per the bar ANSWERS: a) No, the court should not
examination syllabus given by the Supreme declare Charybdis in default. Under the Rules
Court. of Court, the amendment of Rule 14 allowing
service of summons by facsimile transmittal
Circe filed with the RTC a complaint for the refers only to service of summons upon a
foreclosure of real estate mortgage against foreign private juridical entity under Section 12
siblings Scylla and Charybdis, co-owners of the of Rule 14, not to a non-resident defendant
property and cosignatories to the mortgage under Section 15 of Rule 14. Service of
deed. The siblings permanently reside in summons by facsimile cannot be effected
Athens, Greece. Circe tipped off Sheriff Pluto under Section 15 unless leave of court was
that Scylla is on a balikbayan trip and is billeted obtained specifically permitting service by
at the Century Plaza Hotel in Pasay City. facsimile transmittal. Here the defendant is not
Sheriff Pluto went to the hotel and personally a foreign private juridical entity but a non-
served Scylla the summons, but the latter resident defendant and no leave of court was
refused to receive summons for Charybdis as obtained to serve summons by facsimile.
Hence there was no valid service of summons b) The remedy of Grieg is to file a motion for
and thus the court could not declare Charybdis leave to intervene. Under Rule 19, a person
in default. who has a legal interest in the matter in
litigation may intervene in the action. Here
b) The effect of Scyllas answer to the Grieg is a mortgagee and such fact was
complaint is that the court shall try the case annotated in the title. Hence he has a legal
against both Scylla and Charybdis upon the interest in the title subject-matter of the
answer filed by Scylla. Under Section 3(c) of litigation and may thus intervene in the case.
Rule 9, when a pleading asserting a claim states
a common cause of action against several An error of judgment is one which the
defending parties, some of whom answer and court may commit in the exercise of its
the others fail to do so, the court shall try the jurisdiction. Such an error does not deprive
case against all upon the answers thus filed and the court of jurisdiction and is correctible
render judgment upon the evidence presented. only by appeal; whereas an error of
Here there was a common cause of action jurisdiction is one which the court acts
against Scylla and Charybdis since both were without or in excess of its jurisdiction. Such
co-signatories to the mortgage deed. Hence the an error renders an order or judgment void
court should not render judgment by default or voidable and is correctible by the special
against Charybdis but should proceed to try the civil action of certiorari.
case upon the answer filed and the evidence Actions; Cause of Action (2013)
presented by Scylla. While leisurely walking along the street near
her house in Marikina, Patty unknowingly
Strauss filed a complaint against Wagner for stepped on a garden tool left behind by CCC, a
cancellation of title. Wagner moved to dismiss construction company based in Makati. She
the complaint because Grieg, to whom he lost her balance as a consequence and fell into
mortgaged the property as duly annotated in an open manhole. Fortunately, Patty suffered
the TCT, was not impleaded as defendant. no major injuries except for contusions, bruises
a.) Should the complaint be dismissed? (3%) and scratches that did not require any
b.) If the case should proceed to trial without hospitalization. However, she lost self-esteem,
Grieg being impleaded as a party to the case, suffered embarrassment and ridicule, and had
what is his remedy to protect his interest? (2%) bouts of anxiety and bad dreams about the
accident. She wants vindication for her
ANSWERS: a) No, the complaint should not uncalled for experience and hires you to act as
be dismissed. The Supreme Court has held that counsel for her and to do whatever is necessary
non-joinder of an indispensable party is not a to recover at least Php100,000 for what she
ground of a motion to dismiss. (Vesagas v. CA, suffered. What action or actions may Patty
371 SCRA 508). Here although Grieg, the pursue, against whom, where (court and
registered mortgagee, is an indispensable party venue), and under what legal basis? (7%)
(Metrobank v. Alejo, 364 SCRA 813 [2001]), SUGGESTED ANSWER: Patty may avail any
his non-joinder does not warrant the dismissal of the following remedies: a) She may file a
of the complaint. complaint for damages arising from fault or
negligence under the Rules on Small Claims
against CCC Company before the MTC of claims for damages does not exceed Php
Marikina City where she resides or Makati City 400,000.
where the defendant corporation is holding
office, at her option (A.M. No. 8-8-7-SC in Actions; Specific Performance (2012)
relation to Section 2, Rule 4, Rules of Court). A bought a Volvo Sedan from ABC Cars for P
b) She may also file an action to recover moral 5.0M. ABC Cars, before delivering to A, had
damages based on quasi-delict under Article the car rust proofed and tinted by XYZ
2176 of the New Civil Code. The law states Detailing. When delivered to A, the car's
that, whoever by act or omission causes upholstery was found to be damaged. ABC
damage to another, there being fault or Cars and XYZ Detailing both deny any liability.
negligence is obliged to pay for the damage Who can A sue and on what cause(s) of action?
done. Such fault or negligence, if there is no Explain. (5%)
pre-existing contractual relation between the SUGGESTED ANSWER: A can file an action
parties, is called a quasi-delict. Under Article for specific performance and damages against
2217 of the New Civil Code, moral damages ABC Cars since the damage to the Volvo
include physical suffering, mental anguish, Sedans upholstery was caused before the
fright, serious anxiety, besmirched reputation, delivery of the same to A, and therefore prior
wounded feelings, moral shock, social to the transfer of ownership to the latter.
humiliation, and similar injury. Though (Article 1477, New Civil Code). Under Article
incapable of pecuniary computation, moral 1170 of the New Civil Code, those who
damages may be recovered if they are the contravene the tenor of the obligation are liable
proximate result of the defendants wrongful for damages. Hence, an action for specific
act or omission. Since moral damages are performance against ABC Corporation to
incapable of pecuniary estimation, Patty should deliver the agreed Volvo Sedan in the contract,
file the action before the Regional Trial Court free from any damage or defects, with
of Marikina City where she resides or Makati corresponding damages will lie against ABC
City, where the defendant corporation is Cars.
holding office, at her option (Section 19(1), ALTERNATIVE ANSWER: A can sue ABC
B.P. 129). Cars for specific performance or rescission
c) Patty can also file a civil action for damages because the former has contractual relations
against the City of Marikina for maintaining an with the latter.
open manhole where she unfortunately fell.
Under article 2189 of the Civil Code, Appeals; Modes of Appeal (2012)
provinces, cities, and municipalities shall be Where and how will you appeal the following:
liable for damages for the death of, or injuries (1) An order of execution issued by the RTC. (1%)
suffered by, any person by reason of the SUGGESTED ANSWER: A petition for
defective condition of roads, streets, bridges, certiorari under Rule 65 before the Court of
public buildings, and other public works under Appeals. ALTERNATIVE ANSWER: The
their control or supervision. The proper court mode of elevation may be either by appeal (writ
having jurisdiction over the case is at least Php of error or certiorari), or by a special civil action
100,000 for as long as the aggregate of the of certiorari, prohibition, or mandamus.
(Banaga vs. Majaducon cited in General Milling
Corporation-Independent Labor Union vs. Plaintiff files a request for admission and
General Milling Corporation, G.R. No. serves the same on Defendant who fails, within
183122, June 15, 2011, Perez, J.). the time prescribed by the rules, to answer the
(2) Judgment of RTC denying a request. Suppose the request for admission
petition for Writ of Amparo. asked for the admission of the entire material
(1%) allegations stated in the complaint, what should
SUGGESTED ANSWER: Any party may plaintiff do? (5%)
appeal from the final judgment or order to the SUGGESTED ANSWER: The Plaintiff
Supreme Court by way of a petition for review should file a Motion for Judgment on the
on certiorari under Rule 45 of the Rules of Pleadings because the failure of the defendant
Court. the period of appeal shall be five (5) to answer a request for admission results to an
working days from the date of notice of the implied admission of all the matters which an
adverse judgment, and the appeal may raise admission is requested. Hence, a motion for
questions of fact or law or both. (sec. 19, Rule judgment on the pleadings is the appropriate
on Writ of Amparo, A.M. No. 07-9-12-SC, 25 remedy where the defendant is deemed to have
September 2007). admitted the matters contained in the Request
(3) Judgment of MTC on a land registration case for admission by the plaintiff. (Rule 34 in
based on its delegated jurisdiction. (1%) connection with Sec.2, Rule 26, Rules of
SUGGESTED ANSWER: The appeal should Court).
be filed with the Court of Appeals by filing a
Notice of Appeal within 15 days from notice Summons; Valid Service (2013)
of judgment or final order appealed from. (Sec. Alfie Bravo filed with the Regional Trial
34, Batas Pambansa Blg. 129, or the Judiciary Court of Caloocan, a complaint for a sum
Reorganization Act of 1980, as amended by of money against Charlie Delta. The claim
Republic Act No. 7691, March 25, 1994). (4) A is for Php1.5Million. The complaint alleges
decision of the Court of Tax Appeal's First that Charlie borrowed the amount from
Division. (1%) Alfie and duly executed a promissory note
SUGGESTED ANSWER: The decision of the as evidence of the loan. Charlies office
Court of Tax Appeals Division may be secretary, Esther, received the summons at
appealed to the CTA en banc. The decisions of Charlies office. Charlie failed to file an
the Court of Tax Appeals are no longer answer within the required period, and Alfie
appealable to the Court of Appeals. Under the moved to declare Charlie in default and to
modified appeal procedure, the decision of a be allowed to present evidence ex parte.
division of the CTA may be appealed to the Ten days later, Charlie filed his verified
CTA en banc. The decision of the CTA en answer, raising the defense of full payment
banc may in turn be directly appealed to the with interest.
Supreme Court by way of a petition for review (A)Was there proper and valid service of
on certiorari under Rule 45 on questions of summons on Charlie? (3%)
law. (Section 11, R.A. 9282, March 30, 2004). SUGGESTED ANSWER: No. There is no
showing that earnest efforts were exerted to
Judgment; Judgment on the Pleadings personally serve the summons on the
(2012) defendant before substituted service was
resorted to: hence, the service of summons 1) he may, at any time after discovery of the
was improper. In an action strictly in default but before judgment, file a motion,
personam like a complaint for a sum of under oath, to set aside the order of default on
money, personal service on the defendant is the ground that his failure to answer was due
the preferred mode of service, that is, by to fraud, accident, mistake, or excusable
handing a copy of the summons to the neglect, and that he has a meritorious defense;
defendant in person. If defendant, for 2) if judgment has already been rendered when
excusable reasons, cannot be served with he discovered the default, but before the same
the summons within a reasonable period, has become final and executor, he may file a
then substituted service can be resorted to motion for new trial under Section 1(a) of Rule
(Manotoc vs. Court of Appeals, G.R. No. 37:
130974, August 16, 2006, Velasco, J.). 3) if he discovered the default after the
Otherwise stated, it is only when the judgment has become final and executor, he
defendant cannot be served personally may file a petition for relief under Section 2 of
within a reasonable time that a substituted Rule 38; and
service may be made. Impossibility of 4) he may also appeal from the judgment
prompt service should be shown by stating rendered against him as contrary to the
the efforts made to find the defendant evidence or to the law, even if no petition to
personally and the fact that such efforts set aside the order of default has been
failed. This statement should be made in the presented by him. (B.D. Longspan Builders,
proof of service (Galura vs. Math-Agro Inc. vs. R.S. Ampeloquio Realty Development,
Corporation, G.R. No. 167230, August 14, G.R. No. 169919, September 11, 2009). [Note:
2009, 1st Division, Carpio, J.). there are additional remedies to address
ALTERNATIVE ANSWER: Yes. If earnest judgments by default: Motion for
efforts were exerted to serve the summons in Reconsideration (Rule 37), Annulment of
persons but the same proved futile, then Judgment (Rule 47) and Petition for Certiorari
substituted service through defendants (Rule 65)].
secretary is valid. In Gentle Supreme ALTERNATIVE ANSWER: The court
Philippines, Inc. vs. Ricardo Consulta, G.R. committed grave abuse of discretion when it
No. 183182, September 1, 2010, the Supreme declared the defending party in default despite
Court held that it is not necessary that the the latters filing of an Answer. Thus, a petition
person in charge of the defendants regular for certiorari under Rule 65 is the proper
place of business be specifically authorized to remedy. In San Pedro Cineplex Properties vs.
receive the summons. It is enough that he Heirs of Manuel Humada Enano, G.R. No.
appears to be in charge. Consequently, the 190754, November 17, 2010, the Supreme
substituted service of summons to the Court held that where the answer is filed
defendants secretary in the office is valid. beyond the reglementary period but before the
(B) If declared in default, what can Charlie do to defendant is declared in default and there is no
obtain relief? (4%) showing that defendant intends to delay the
SUGGESTED ANSWER: If Charlie is case, the answer should be admitted. Thus, it
declared in default, he has the following was error to declare the defending party in
remedies to wit: default after the Answer was filed (See Sablas
vs. Sablas, G.R. No. 144568, July 3, 2007). for the satisfaction of any judgment, where
After all, the defect in the service of summons this adverse party is about to depart from
was cured by Charlies filing of a verified the Philippines, where he has intent to
answer raising only the defense of full defraud or has committed fraud, or is not
payment. The belated filing of verified Answer found in the Philippines. An affidavit and a
amounts to voluntary submission to the bond is required before the preliminary
jurisdiction of the court and waiver of any attachment issues. It is discharged upon the
defect in the service of summons. payment of a counterbond.
GARNISHMENT- is a manner of satisfying or
Venue; Real Actions (2012) executing judgment where the sheriff may levy
A, a resident of Quezon City, wants to file debts, credits, royalties, commissions, bank
an action against B, a resident of Pasay, to deposits, and other personal property not
compel the latter to execute a Deed of Sale capable of manual delivery that are in the
covering a lot situated in Marikina and that control or possession of third persons and are
transfer of title be issued to him claiming due the judgment obligor. Notice shall be
ownership of the land. Where should A file served on third parties. The third party
the case? Explain. (5%) garnishee must make a written report on
SUGGESTED ANSWER: A should file whether or not the judgment obligor has
the case in Marikina, the place where the sufficient funds or credits to satisfy the amount
real property subject matter of the case is of the judgment. If not, the report shall state
situated. An action for specific how much fund or credits the garnishee holds
performance would still be considered a for the judgment obligor. Such garnish
real action where it seeks the conveyance or amounts shall be delivered to the judgment
transfer of real property, or ultimately, the oblige-creditor (Rule 39, Sec.9 [c]). LEVY ON
execution of deeds of conveyance of real EXECUTION- is a manner of satisfying or
property. (Gochan vs. Gochan, 423 Phil. executing judgment where the sheriff may sell
491, 501 [2001]; Copioso vs. Copioso, 391 property of the judgment obligor if he is unable
SCRA 325 [2002]) to pay all or part of the obligation in cash,
certified bank check or any other manner
Attachment; Kinds of Attachment (2012) acceptable to the oblige. If the obligor does not
Briefly discuss/differentiate the following chose which among his property may be sold,
kinds of Attachment: preliminary the sheriff shall sell personal property first and
attachment, garnishment, levy on then real property second. He must sell only so
execution, warrant of seizure and warrant much of the personal and real property as is
of distraint and levy. (5%) SUGGESTED sufficient to satisfy judgment and other lawful
ANSWER: fees. (Rule 39, Sec.9 [b]). WARRANT OF
PRELIMINARY ATTACHMENT- is a SEIZURE- is normally applied for, with a
provisional remedy under Rule 57 of the search warrant, in criminal cases. The warrant
Rules of Court. it may be sought at the of seizure must particularly describe the things
commencement of an action or at any time to be seized. While it is true that the property
before entry judgment where property of an to be seized under a warrant must be
adverse party may be attached as security particularly described therin and no other
property can be taken thereunder, yet the preceded or contemporaneously accompanied
description is required to be specific only by service of summons. There must be prior or
insofar as the circumstances will ordinarily contemporaneous service of summons with
allow. An application for search and seizure the writ of attachment. (Rule 57, Sec.5, Rules
warrant shall be filed with the following: (a) of Court).
Any court within whose territorial jurisdiction
a crime was committed. (b) For compelling Certiorari; Petition for Certiorari, Rule 65
reasons stated in the application, any court (2012)
within the judicial region where the crime was After an information for rape was filed in the
committed if the place of the commission of RTC, the DOJ Secretary, acting on the
the crime is known, or any court within the accused's petition for review, reversed the
judicial region where the warrant shall be investigating prosecutor's finding of probable
enforced. However, if the criminal action has cause. Upon order of the DOJ Secretary, the
already been filed, the application shall only be trial prosecutor filed a Motion to Withdraw
made in the court where the criminal action is Information which the judge granted. The
pending. order of the judge stated only the following:
WARRANT OF DISTRAINT AND LEVY- "Based on the review by the DOJ Secretary of
is remedy available to local governments and the findings of the investigating prosecutor
the BIR in tax cases to satisfy deficiencies or during the preliminary investigation, the Court
delinquencies in inheritance and estate taxes, agrees that there is no sufficient evidence
and real estate taxes. Distraint is the seizure of against the accused to sustain the allegation in
personal property to be sold in an authorized the information. The motion to withdraw
auction sale. Levy is the issuance of a Information is, therefore, granted." If you were
certification by the proper officer showing the the private prosecutor, what should you do?
name of the taxpayer and the tax, fee, charge, Explain. (5%)
or penalty due him. Levy is made by writing
upon said certificate the description of the SUGGESTED ANSWER: If I were the
property upon which levy is made. private prosecutor, I would file a petition for
certiorari under Rule 65 with the Court of
Attachment; Preliminary Attachment (2012) Appeals (Cerezo vs. People, G.R. No.185230,
A sues B for collection of a sum of money. June 1, 2011). It is well-settled that when the
Alleging fraud in the contracting of the loan, A trial court is confronted with a motion to
applies for preliminary attachment with the withdraw and Information (on the ground of
court. The Court issues the preliminary lack of probable cause to hold the accused for
attachment after A files a bond. While trial based on resolution of the DOJ Secretary),
summons on B was yet unserved, the sheriff the trial court has the duty to make an
attached B's properties. Afterwards, summons independent assessment of the merits of the
was duly served on B. 8 moves to lift the motion. It may either agree or disagree with the
attachment. Rule on this. (5%) recommendation of the Secretary. Reliance
SUGGESTED ANSWER: I will grant the alone on the resolution of the Secretary would
motion since no levy on attachment pursuant be an abdication of the trial courts duty and
to the writ shall be enforced unless it is jurisdiction to determine a prima facie case.
The court must itself be convinced that there assistance of peace officers pursuant to Section
is indeed no sufficient evidence against the 10 (c) of Rule 39 (Lipa vs. Tutaan, L-16643, 29
accused. Otherwise, the judge acted with grave September 1983; Medina vs. Garces, L-25923,
abuse of discretion if he grants the Motion to July 15, 1980; Pascua vs. Heirs of Segundo
Withdraw Information by the trial prosecutor. Simeon, 161 SCRA 1; Patagan et. al. Vs. Panis,
(Harold Tamargo vs. Romulo Awingan et. al. G.R. No. 55630, April 8, 1988).
G.R. No. 177727, January 19, 2010).
ALTERNATIVE ANSWER: If I were the Forcible Entry; Remedies (2013)
private prosecutor, I would file a Motion for The spouses Juan reside in Quezon City. With
Reconsideration of the Order of the trial court. their lottery winnings, they purchased a parcel
if the same has been denied, I would file a of land in Tagaytay City for P100,000.00. In a
petition for review on certiorari under Rule 45 recent trip to their Tagaytay property, they
on pure question of law, which actually were surprised to see hastily assembled shelters
encompasses both the criminal and civil of light materials occupied by several families
aspects thereof. The filing of the petition is of informal settlers who were not there when
merely a continuation of the appellate process. they last visited the property three (3) months
ago. To rid the spouses Tagaytay property of
Certiorari; Petition for Certiorari; Contempt these informal settlers, briefly discuss the legal
(2012) remedy you, as their counsel, would use; the
Mr. Sheriff attempts to enforce a Writ of steps you would take; the court where you
Execution against X, a tenant in a would file your remedy if the need arises; and
condominium unit, who lost in an ejectment the reason/s for your actions. (7%)
case. X does not want to budge and refuses to SUGGESTED ANSWER: As counsel for
leave. Y, the winning party, moves that X be spouses Juan, I will file a special civil action for
declared in contempt and after hearing, the Forcible Entry. The Rules of Court provide
court held X guilty of indirect contempt. If you that a person deprived of the possession of any
were X's lawyer, what would you do? Why? land or building by force, intimidation, threat,
(5%) SUGGESTED ANSWER: If I were Xs strategy, or stealth may at anytime within 1 year
Lawyer, I would file a petition for certiorari after such withholding of possession bring an
under Rule 65. The judge should not have action in the proper Municipal Trial Court
acted on Ys motion to declare X in contempt. where the property is located. This action
The charge of indirect contempt is initiated which is summary in nature seeks to recover
through a verified petition. (Rule 71, Sec. 4, the possession of the property from the
Rules of Court). The writ was not directed to defendant which was illegally withheld by the
X but to the sheriff who was directed to deliver latter (Section 1, Rule 70, Rules of Court). An
the property to Y. As the writ did not ejectment case is designed to restore , through
command the judgment debtor to do anything, summary proceedings, the physical possession
he cannot be guilty of the facts described in of any land or building to one who has been
Rule 71 which is disobedience of or resistance illegally deprived of such possession, without
to a lawful writ, process, order, judgment, or prejudice to the settlement of parties
command any court. the proper procedure is opposing claims of juridical possession in an
for the sheriff to oust X availing of the appropriate proceedings (Heirs of Agapatio T.
Olarte and Angela A. Olarte et. al. vs. Office of obviously was incorrect. Alleging that the RTC
the President of the Philippines et al., G.R. No. Judge "unlawfully neglected the performance
177995, June 15, 2011, Villarama, Jr., J.). In of an act which the law specifically enjoins as a
Abad vs. Farrales, G.R. No. 178635, April 11, duty resulting from an office", 8 files a Petition
2011, the Supreme Court held that two for Mandamus against the judge. Will
allegations are indispensable in actions for Mandamus lie? Reasons. (3%)
forcible entry to enable first level courts to SUGGESTED ANSWER:
acquire jurisdiction over them: first, that the No, mandamus will not lie. The proper remedy
plaintiff had prior physical possession of the is a petition for prohibition. (Serana vs.
property; and, second, that the defendant Sandiganbayan, G.R. No. 162059, January 22,
deprived him of such possession by means of 2008). The dismissal of the case based on
force, intimidation, threats, strategy, or stealth. improper venue is not a ministerial duty.
However, before instituting the said action, I Mandamus does not lie to comple the
will first endeavour to amicably settle the performance of a discretionary duty. (Nilo
controversy with the informal settlers before Paloma vs. Danilo Mora, G.R. No. 157783,
the appropriate Lupon or Barangay Chairman. September 23, 2005).
If there is no agreement reached after
mediation and conciliation under the
Katarungang Pambarangay Law, I will secure a
certificate to file action and file the complaint
for ejectment before the MTC of Tagaytay City
where the property is located since ejectment
suit is a real action regardless of the value of
the property to be recovered or claim for
unpaid rentals (BP 129 and RULE 4, Section 1
of the Revised Rules on Civil Procedure). In
the aforementioned complaint, I will allege that
Spouses Juan had prior physical possession and
that the dispossession was due to force,
intimidation and stealth. The complaint will
likewise show that the action was commenced
within a period of one (10 year from unlawful
deprivation of possession, and that the Spouses
Juan is entitled to restitution of possession
together with damage costs.

Mandamus (2012)
A files a Complaint against 8 for recovery of
title and possession of land situated in Makati
with the RTC of Pasig. B files a Motion to
Dismiss for improper venue. The RTC Pasig
Judge denies B's Motion to Dismiss, which