CIVPRO REVIEWER_Leonen AY 2008-2009

R62. INTERPLEADER
When to file: 1. Conflicting claims upon same subject matter are/maybe made against a person who claims no interest whatsoever in the subject matter 2. Interest which in whole or in part is not disputed by claimants WHO WOULD FILE: person who may be claimed against? WHY: to compel the conflicting claimants to interplead and litigate their several claims among themselves File > ORDER to interplead -court may order that subject matter be paid/delivered to court SUMMONS: served w/ copy of complaint + order to interplead MTD allowed -file w/n time for filing answer (15d from service) -grounds: a. impropriety of interpleader b. other appropriate grounds under R16 -period to file answer TOLLED by MTD -if MTD DENIED: may still file answer w/n the remaining period but not less than 5d from NOTICE OF DENIAL ANSWER (directly or after notice of denial of mtd) -w/n 15d from service -set forth claim -responded to by a reply -FAILURE TO FILE ANSWER: >motion to declare in default >judgment: bar claimant from any claim in respect to the subject matter!!! NO pleadings prohibited (not a summary proceeding) DETERMINATION OF RESPECTIVE RIGHTS AND ADJUDICATION OF CLAIMS -after pleadings filed -after pretrial conducted DOCKET FEES, lawful fees, litigations expenses lien upon subject matter of the action

PARTIES -have/claim any interest -this would be an axn in personam: only the parties would be affected NOTICE TO SOLGEN: if involves validity of a governmental regulation -notice made by party assailing the same -notified and heard IF VALIDITY OF LOCAL GOV ORDINANCE: notify prosecutor/atty of the LGU involved -notified and heard -if UNCONSTITUTIONALITY: solgen notified and heard CONVERSION: PETITION FOR DECLARATORY RELIEF to ORDINARY ACTION -breach or violation took place -parties shall be allowed to file pleadings as may be necessary

R64. REVIEW OF JFOR OF COMELEC AND COA

SCOPE: JFOR of COMELEC AND COA (duh?!) MODE: PETITION FOR CERTIORARI UNDER R65 TO SC TIME TO FILE: w/n 30d from NOTICE of JFOR -if filed MNT/MFR (if allowed): would TOLL period to file petition if MNT/MFR DENIED, may still filed petition w/n remaining period (but 5d always from date of NOTICE OF DENIAL) PAY docket and other lawful fees + deposit P500 FORMS AND CONTENTS: -verified -in 18 LEGIBLE copies -contents: 1. name of aggrieved party (petitioner) 2. name of respondent (COMELEC/COA and person interested in sustaining JFOR) 3. facts w/ certainty 4. issues presented clearly 5. grounds and brief arguments 6. PRAYER: annulment/modification of JFOR 7. ACCOMPANIED BY (photocopies for the other requisite copies): a. clearly legible duplicate original/ctc of JFOR b. CTC of material portions of the record c. other relevant and pertinent docs 8. specific material dates showing that it was filed w/n period fixed 9. sworn CNFS 10. proof of service of copy on COMELEC/COA and adverse party 11. proof of timely payment of docket and other lawful fees *FINDINGS OF FACT: if supported by substantial evidence: FINAL AND NONREVIEWABLE -FAILURE TO COMPLY W/ FORMAL REQUIREMENTS: ground for dismissal! Then SC would a. ORDER TO COMMENT -SC finds that petition is sufficient in form and substance -SC would then order respondents to file COMMENT -period to file COMMENT: w/n10d from NOTICE (more on comment later)

R63. DECLARATORY RELIEF

WHO MAY FILE: any person 1. Interested under a deed, will, contract or other written instrument 2. Whose rights are affected by a statute/EO/regulation/ordinance/any other governmental regulation WHEN: before breach/violation WHERE: RTC WHY: 1. To determine any question of construction or validity 2. Declaration of rights and duties underwhich INCLUDES: 1. Action for reformation of an instrument 2. Action to quiet title to real property 3. Action to remove clouds from property 4. Action to consolidateownership (in all other cases, court may refuse to exercise power to declare rights and to construe instruments IF: a. Decision would not terminate uncertainty/controversy b. Declaration/construction not necessary and proper)

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b. DISMISS OUTRIGHT -not sufficient in form and substance (e.g. kulang required formalities) -filed manifestly for delay -questions raised are too unsubstantial to warrant further proceedings Comment -filed in 18 copies -original accompanied by: a. CTC of material portions of record b. supporting papers -sa copies: plain copies na lang LIMIT ON PLEADINGS: PETITION AND COMMENT lang unless court orders EFFECT OF FILING of PETITION: GR: shall not stay execution of JFOR X: SC says so SUBMISSION FOR DECISION If none of these required or after these complied w/ (or after expiration of period to do the same) a. Sets case for oral arguments b. Requires parties to submit memoranda 4. 5. 6. 7. VERIFIED petition In the proper court (SC, CA, RTC) Allege facts w/ certainty PRAY that a. judgment be rendered commanding the respondent to DESIST from further proceedings in the action/matter specified therein b. incidental reliefs as law and justice may require ACCOMPANIED BY: a. CTC of JOR subject b. Copies of all pleadings and documents RELEVANT and PERTINENT c. Sworn CNFS

8.

REQUISITES

1.
2.

R65: CPM
R65.1 PETITION FOR CERTIORARI
Requisites: 1. WHO: TBO (tribunal, board or officer) exercising JUDICIAL or QJ functions 2. WHAT: a. Acted w/o jurisdiction b. Acted in excess of its jurisdiction c. Acted w/ GADALEJ 3. No appeal, nor any PSA (Plain, Speedy, Adequate) remedy in the ordinary course of law 4. VERIFIED petition 5. Before the proper court (SC, CA, RTC) 6. Allege facts w/ certainty 7. PRAYER: Either a. Annul b. Modify the PROCEEDINGS of TBO c. Grant incidental reliefs 8. Accompanied by: a. CTC of Judgment/order/resolution b. Copies of all the pleadings and docs relevant and pertinent c. Sworn CNFS

3. 4. 5. 6. 7.

8.

WHO: TBOAC WHEN: a. Unlawfully neglects the performance of an act w/c the law specifically enjoins as a duty resulting from an office, trust, or station b. Unlawfully excludes another from the use and enjoyment of a right or office to w/c such other is entitled No other PSA (no appeal, no case yet) in the ordinary course of law VERIFIED petition In the proper court (SC, CA, RTC) Allege facts w/ certainty Pray that a. Judgment be rendered COMMANDING the respondent, immediately or at some other time specified by the court, to do the act required to be done TO PROTECT THE RIGHTS OF THE PETITIONER b. Pay DAMAGES sustained by the petitioner by reason of the wrongful acts of the respondent ACCOMPANIED BY CNFS

CMP in general
WHEN FILED: NOT later than 60d from >NOTICE of JOR >from the NOTICE OF DENIAL OF MFR/MNT

R65.2 PETITION FOR PROHIBITION

Requisites: 1. WHAT: Proceedings of any TCBOP (tribunal, corporation, board, officer, person), whether exercising J/QJ/ministerial functions 2. GROUNDS proper a. Acted w/o jurisdiction b. Acted in excess of jurisdiction c. Acted w/ GADALEJ 3. No appeal or any other PSA in the ordinary course of law

*PROPER COURT: 1. SC 2. RTC: (w/c has jurisdiction over the territorial areaacts or omissions of a +Lower court (MTC) +CBOP 3. CA: WON in aid of its appellate jurisdiction + acts or omissions of QJA (unless otherwise provided) 4. Sandiganbayan: IN AID of its appellate jurisdiction EXTENSION OF TIME: GR: BAWAL X: compelling reason, MAX 15d

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R65.3 PETITION FOR MANDAMUS

CIVPRO REVIEWER_Leonen AY 2008-2009

*if PETITION relates to acts or omissions of J/C/QJA/TCBOP petitioner should join PRIVATE RESPONDENT/S w/ PUBLIC RESPONDENTS PRIVATE RESPONDENTS has duty: >to appear >to defend >to pay costs awarded to petitioner (public respondents dont pay) .PUBLIC RESPONDENTS >merely nominal parties (unless directed by the court, even on appeal) >shall not appear >shall not file an answer/comment IF SUFFICIENT IN FORM AND SUBSTANCE to justify the process: Court issue ORDER: COMMENT w/n 10d fr receipt of a COPY OF ORDER (NOT MTD!) served on RESPONDENTS w/ >COPY of petition >annexes ...SUFFICIENT IN FORM: 18 copies if before SC and CA after COMMENT: file REPLY and other responsive pleadings if gusto ng court INJUNCTIVE RELIEFS *orders expediting the proceedings *TRO (to INTERRUPT the PROCEEDINGS if no TRO, proceedings would still go on even w/ petition filed) *WPI for preservation of rights of parties pending proceedings HEARING WHEN: 1. After comment/other pleadings required by court are filed 2. Time for filing COMMENT/other pleadings EXPIRED WHAT: court hear case OR 2. may require parties to submit MEMORANDA JUDGMENT 1. GRANT if >WHEN: a. after hearing or submission of memoranda b. after expiration of PERIOD for filing memo >GROUNDS: allegations of the petition are TRUE 2. DISMISS Patently w/o merit Prosecuted manifestly for delay Questions raised are TOO UNSUBSTANTIAL to require consideration >serve CERTIFIED COPY of JUDGMENT to PRIVATE AND PUBLIC respondents >DISOBEDIENCE: punished as CONTEMPT >EXECUTION: damages and cost follow R39.1

R66. QUO WARRANTO

GROUNDS: usurpation of a public office, position or franchise NOT: a. Action for ouster fr office (unless commenced w/n 1yr after the cause of the ouster/right of petitioner Action for damages unless commenced w/n 1yr after entry of judgment establishing petitioners right PETITIONER: RP RESPONDENT:

b.

1.

a. b. c.

Person who usurps, intrudes into, unlawfully holds/exercises a public office/position/franchise Public officer who does/suffers an act = ground for forfeiture of his office

Association acting as a corporation w/n RP w/o being legally incorporated OR w/o lawful authority to so act WHO COMMENCES: a. SOLGEN/PUBLIC PROSEC b. SOLGEN/PUBLIC PROSEC at the request of another c. Person claiming to be entitled to the office/position USURPED/UNLAWFULLY HELD WHEN: a. b.

When DIRECTED by President of RP When upon complaint/otherwise SOLGEN/PUBLIC PROSEC has good reason to believe that any case specified in the proceeding can be established by proof WITH PERMISSION FO THE COURT (W/ LEAVE OF COURT?) if to be commenced at the request and

c.

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upon the relation of another person SOLGEN/pubprosec may 1st require INDEMNITY for expenses and costs HEARING: COURT will >upon application (when w/ permission of court): DIRECTS NOTICE to respondent >if permission approved: issue ORDER to RESPONDENT serve copies to ALL INTERESTED CONTENTS OF PETITION *if vs. person ururping a public office: a. name of the person claiming to be entitled to the position b. aver right to the position c. aver that respondent is unlawfully in possession VENUE if SOLGEN: RTC in City of Manila/CA/SC If not SOLGEN: SC/CA/RTC exercising jurisdiction over territorial area where RESPONDENT resides PERIOD: court would provide (consider expediting the proceeding) may be given precedence JUDGMENT for usurpation: a. Respondent be ousted + excluded from position b. Petitioner recover costs i. Vs. petitioner/relator ii. Respondent iii. Person/s claiming to be a corporation iv. May apportion cost c. May Determine respectiverights in and to the public office PETITIONER: a. Take oath of office b. Execute official bond c. Take upon himself the execution of the office d. May demand from respondent the books and papers in his custody /control appertaining to the office e. IF RESPONDENT REFUSE: file petition for contempt f. May bring action for damages sustained by reason of usurpation b. OBSCURE/doubtful, plaintiff cannot w/ accuracy or certainty specify who are the real owners WHEN PLAINTIFF COULD TAKE/ENTER POSSESSION 1. File complaint/anytime after 2. Give DUE NOTICE TO DEFENDANT 3. Deposits w/ authorized government depository a. IF REAL PROPERTY INVOLVED amount: ASSESSED VALUE OF PROPERTY FOR PURPOSESE OF TAXATION IN MONEY (unless court authorizes CERTIFICATE OF DEPOSIT OF A GOVT BANK OF RP PAYABLE ON DEMAND TO AUTHORIZED GOVT DEPOSITORY) b. IF PERSONAL PROPERTY INVOLVED VALUE: provisionally ascertained, fixed by court 4. After DEPOSIT, court ORDER sheriff/proper officer to place plaintiff in possession of property 5. Sheriff would place plaintiff in possession 6. Sheriff would submit a report to court, serving copies to ALL PARTIES ACTION OF DEFENDANT A. NO OBJECTION/DEFENSE TO THE ACTION FILE and SERVE: a. Notice of appearance b. Manifestation of appearance Contents: specify property in which he claims to be interested PERIOD TO FILE: w/n time specified in the summons Effect: DEFENDANT entitled to NOTICE of all proceedings affecting his claim B. W/ OBJECTION/DEFENSE Serve ANSWER PERIOD: w/n time specified in the summons CONTENTS: 1. Specifically designate/identify property in w/c he claims to have an interest 2. Nature and extent of interest claimed 3. All objections and defenses to the taking of his property *NOTE: BAWAL ANG: >counterclaim >cross-claim >TPC *if not alleged: WAIVE OBJECTIONS AND DEFENSES BUTcourt may allow amendment of answer w/n 10d from FILING of answer (so w/leave of court?) *ANSWER NOT REQUISITE for trial of the issue of JUST COMPENSATION: a. may present evidence as to AMOUNT of COMPENSATION TO BE PAID for his property b. may share in the distribution of the award ORDER OF EXPROPRIATION: when issued a. Objections to and defenses against RIGHT OF expropriation OVERRULED b. NO party appears to defend CONTENTS of ORDER OF EXPROPRIATION

R67. EXPROPRIATION
FIRST: Determine WON plaintiff has right to expropriate for public use or purpose
COMPLAINT -VERIFIED -CONTENTS: state w/ certainty 1. right to expropriate 2. purpose for expropriation 3. description of the real/personal property to be expropriated 4. show interest of all defendants -join as DEFENDANTS ALL persons owning claiming to own occupying any part/interest thereof 5. aver details of titleif TITLE a. in RP but OCCUPIED by private individuals

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1. Declare that plaintiff has lawful right to expropriate for the public use/purpose described in the complaint Upon payment of JUST COMPENSATION (so declare lang na may right to expropriate, cant take it yet!) determined as of DATE of (WHICHEVER COMES FIRST) > TAKING OF PROPERTY OR > FILING OF THE COMPLAINT Consequential damages: damages to the property not taken Consequential benefits: derived by the OWNER (of the property to be taken) from public use/purpose of the property taken operation of its franchise by the corporation carrying on of the business of the corporation or person taking the property LIMITATIONS: 1. Consequential benefits should not exceed Consequential damages 2. Owner should not be deprived of ACTUAL VALUE of property so taken

2.

APPEAL of FOrder SUSTAINING RIGHT TO EXPROPRIATE BUT does not stay the DETERMINATION OF JUST COMPENSATION AFTER RENDITION OF ORDER (rendition: service of order to parties): GR: plaintiff cant DISMISS or DISCONTINUE proceeding X: just and equitable

SECOND: Ascertain value of JUST COMPENSATION

WHEN: after RENDITION OF FOrder OF EXPROPRIATION APPOINTMENT OF COMMISSIONERS -max: 3 -should be disinterested -TASK: a. ascertain just compensation b. report to the court ORDER OF APPOINTMENT OF COMMISSIONERS 1. Specify the commissioners Specify time w/n w/c report shall be submitted to court (DEADLINE for commissioners 60d (unless extended) from notification of commissioners of their appointment sa Sec7!) copies of order served on parties if there are OBJECTIONS TO THE APPOINTMENT OF THE COMMISSIONERS: >File w/n 10d from SERVICE >resolved w/n 30d after all commissioners received copies of objections PROCEEDINGS OF COMMISSIONERS Before entering performance: TAKE AND SUBSCRIBE AN OATH that they will faithfully perform their duties 2. File w/ court THE OATH After oath-taking 3. Presentation of evidence commissioners authorized to administer oaths on hearings 4. VIEWING AND EXAMINATION OF PROPERTY SOUGHT TO BE EXPROPRIATED w/due notice to all parties to attend ...commissioners may measure property X: parties consent to the contrary 5. Parties argue the case 6. Commissioners assess CONSEQUENTIAL DAMAGES and BENEFITS

2. 3.

Designate time and place of 1st session

after report FILED: COC serve copies of the report of the commissioners to all parties interested OBJECTIONS TO THE REPORT: w/n 10d from service to file OBJECTIONS ACTION OF THE COURT When: 1. Upon expiration of 10d period to file objections 2. Before 10d after all interested parties filed objections/statement of agreement 3. After hearing Court could: 1. Accept the report and render judgment in accordance therewith 2. For cause shown: recommit same to commissioners for further report of facts 3. Set aside report of commissioners, appoint new commissioners 4. Accept report in part, reject it in part 5. AND make such order/judgment as shall secure to the plaintiff the property essential to the exercise of his right to expropriation defendant just compensation for the property so taken IF OWNERSHIP UNCERTAIN CONFLICTING CLAIMS TO ANY PART OF THE PROPERTY Awarded sum may be ordered to be paid to the court for the benefit of the person adjudged to be entitled

1.

Cha Mendoza_ Special Civil Actions

REPORT OF COMMISSIONERS A. Partial report -court may ORDER commissioners to report when any particular portion of the real estate has been passed upon by the commissioners -court may direct JUDGMENT upon such partial report B. Full and accurate report CONTENTS: All the proceedings before the commissioners Proceedings ONLY EFFECTUAL UNTIL COURT accept report + render judgment in accordance w/ their recommendation FILING OF REPORT: GR: w/n 60d from date the commissioners were notified of their appointment X: extended

CIVPRO REVIEWER_Leonen AY 2008-2009

*PAYMENT ALWAYS REQUIRED to the court or the person awarded before the plaintiff may a. Enter the property b. Retain it for public use or purpose, if entry already made RIGHTS OF PLAINTIFF after the judgment and payment 1. Right to enter upon the property 2. Right to appropriate it for the public use or purpose defined in the judgment 3. Right to retain it (if already in possession) WHEN DEPOSIT to court = payment 1. Defendant/counsel absent themselves from the court 2. Defendant/counsel decline to receive the amount tendered APPEAL shall not delay rights of defendant to expropriate if appellate court decide that plaintiff has NO RIGHT TO EXPROPRIATION: judgment rendered: a. Enforce the restoration to the defendant of the possession of the property b. Determine damages w/c defendant sustained and may recover COSTS *fees of the commissioner: taxed as part of the costs of the proceedings *all costs (except those of rival claimants litigating their claim): paid by plaintiff X: judgment APPEALED, judgment of lower court affirmed cost of APPEAL paid by owner who appealed RECORDING of JUDGMENT Contents of judgment: state definitely by an adequate description 1. Particular property/interest therein expropriated Nature of the public use or purpose for which it is expropriated If Real estate Expropriated: certified copy of judgment RECORDED in registry of deeds of place where property is situated >effect of recording: vest in plaintiff TITLE to real property POWER OF GUARDIAN should be w/ approval of the court may represent ward respecting expropriation for public use or purpose (do acts w/c the ward may do in such proceedings if he were of age or competent)

R69 PARTITION
WHO MAY FILE: person who has right to compel partition of real estate CONTENTS OF COMPLAINT: 1. Nature and extent of title 2. adequate description of the real estate of which partition is demanded 3. join ALL other persons interested in the property as defendants ORDER OF PARTITION When issued: -after trial -court finds that plaintiff has right thereto -then: a. parties may partition among themselves by proper instruments of conveyance then COURT WOULD CONFIRM the partition so agreed partition would be RECORDED in the registry of deeds -appealable b. parties may not agree: so COURT shall appoint max 3 competent and disinterested commissioners to make partition commissioners would set off to plaintiff and to each party such part and proportion of the property as the court shall direct SO PAG MAY COMMISSIONERS 1. Take and subscribe oath that they will faithfully perform their duties as commissioners 2. File Oath to court 3. Commissioners would view and examine the real estate After due notice to the parties to attend at such view and examination 4. Commissioners would hear parties as to their *preference in the portion of the property *comparative value Commissioners would then SET APART the properties to the parties in lots or parcels as will be most ADVANTAGEOUS AND EQUITABLE Consider: *improvements *situation *equality of different parts OR, instead of apportioning the properties among the heirs, the commissioners may instead ASSIGN to an heir or SELL the property in a public sale WHEN? It is made to appear to the commissioners that the real estate, or a portion thereof, CANNOT BE DIVIDED W/O PREJUDICE TO THE INTERESTS OF THE PARTIES 1. Assignment to one of the parties -by court order -party should pay the amounts ast he commissioner deem EQUITABLE 2. Public sale -if, instead of assigning it to one, one of the parties ask that it be sold instead -court would impose conditions REPORT OF COMMISSIONERS -full and accurate report

5.

2.

BRGY SAN ROQUE VS. HEIRS OF PASTOR, it was held that expropriation proceedings, being
*note: in the case of incapable of pecuniary estimation, are under the RTC always (regardless of assessed value of the property)

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-contents: a. proceedings as to the partition b. assignment to one of the parties OR c. sale -filed before the court -copies served on ALL INTERESTED PARTIES interested parties may file OBJECTIONS w/n 10d from SERVICE OF NOTICE *no transfer of title until court ACCEPTED REPORT + RENDERED JUDGMENT ACTION OF COURT WHEN -upon expiration of 10d OR -before 10d BUT AFTER parties submitted objections/statement of agreement COURT COULD 1. Accept the report + render judgment in accordance therewith 2. For good cause shown: recommit the same to the commissioners for further report on the facts 3. Set aside report + appoint new commissioners 4. Accept in part, reject in part 5. AND make such order + render judgment as shall effectuate a fair and just partition of the real estate ACCOUNTING FOR RENT AND PROFITS: party shall recover just share of rents and profits received by such other party from the real estate in question judgment would include allowance for rents and profits POWER OF GUARDIAN -should be w/ court approval -represent ward (do acts that the ward may do if he were of age or competent) COST and EXPENSES -tax and apportion equitably between and among parties -execution may issue as in other cases JUDGMENT AND EFFECTS if ACTUAL PARTITION -judgment shall state: 1. metes and bounds of the property 2. adequate description of the property 3. particular portion of the real estate assigned to each paryt -EFFECT: vest in each party in severalty the portion of the real estate assigned to him if WHOLE PROPERTY ASSIGNED TO 1 PARTY -Judgment shall state: 1. fact of payment 2. fact of assignment of property -effect: vest in party making payment the whole of the real estate free from any interest on the part of the other parties if the PROPERTY SOLD IN PUBLIC AUCTION, SALE CONFIRMED BY COURT -judgment shall state: 1. name of purchaser 2. definite description of the parcels of real estate sold to each purchaser (so pede marami nakabili) -effect: vest title to the purchasers making payment, free from claims of any of the parties ---whatever happens, CERTIFIED COPY OF THE JUDGMENT SHALL BE RECORDED in the registry of deeds EXPENSES of recording: part of the costs *respect PARAMOUNT RIGHTS *parties holding real estate jointly or in common may still enter amicable partition w/o recourse to an action PARTITION OF PERSONAL PROPERTY included: partitions of estates!

who may file: 1. Person deprived of possession of any land or building BY FITSS (FORCE, INTIMIDATION, THREAT, STRATEGY, OR STEALTH) Lessor/vendor/vendee/other person against whom the possession of any land or building is unlawfully w/held AFTER THE EXPIRATION/TERMINATION OF THE RIGHT TO HOLD POSSESSION (by virtue of a conrtact) When: anytime w/n 1yr AFTER 1. Unlawful deprivation 2. Unlawful w/holding of possession COURT: MTC RELIEF: restitution of possession + damages + costs CONDITION PRECEDENT: Demand to pay/comply w/ conditions of lease OR Serving WRITTEN NOTICE to person found on the premises OR 3. IF NO PERSON FOUND: by posting notice on the premises if lessee fails to comply w/n *15d: land *5d: building PROCEEDINGS: GR: by summary procedure X: 1. Covered by Agricultural tenancy laws 2. Law expressly provides it 2. PLEADINGS ALLOWED: 1. Complaint Compulsory counterclaim in ANSWER 3. Cross claim in ANSWER *pleadings should be VERIFIED PLEADINGS NOT ALLOWED: PARA MAS MADALI, MEMORIZE PLEADINGS ALLOWED! ACTION of court 1. Examine allegations in the complaint + evidence attached 2. Then a. DISMISS case outright: on GROUNDS FOR DISMISSAL APPARENT THEREIN b. Issue summons: no ground for dismissal

2.

1.

2.

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R70. FORCIBLE ENTRY AND UNLAWFUL DETAINER

CIVPRO REVIEWER_Leonen AY 2008-2009

ANSWER -FILE & SERVE w/n 10d from SERVICE OF SUMMONS -affirmative and negative defenses GR: not pleaded: waived X: lack of jurisdiction over the subject matter -cross claims and compulsory counterclaims: not asserted = considered barred Anwer to crossclaims and compulsory counterclaims: file w/n 10d from SERVICE OF ANSWER EFFECT OF FAILURE TO ANSWER -court >motu proprio >OR on motion of the plaintiff render JUDGMENT as may be warranted by the facts, limited by what is prayed for -court may reduce amount of damages and attys fees PRELIMINARY CONFERENCE -not later than 30d after last answer -follow rules on pretrial IF PLAINTIFF FAILS TO APPEAR: -dismiss complaint -defendant who appears shall be entitled to judgment on his counterclaim -ALL COUNTERCLAIMS dismissed IF SOLE DEFENDANT FAILS TO APPEAR: -plaintiff would be entitled to judgment IF 2+ defendants sued UNDER A COMMON COA + pleaded COMMON DEFENSE1 absent: NO DEFAULT *no postponement of preliminary conference X: -highly meritorious grounds -w/o prejudice to such sanctions as the court may exercise RECORD of PRELIM CONFERENCE -w/n5d after termination -issued by the court -states matters taken up, like: 1. WON entered into amicable settlement 2. stipulations/admissions entered 3. WON based on stipulations/admissions, judgment may be rendered w/o need of further proceedings judgment rendered w/n 30d from issuance of order 4. material facts still controverted 5. other matters intended to expedite the disposition of the case SUBMISSION OF AFFIDAVITS & POSITION PAPERS -w/n 10d from receipt of ORDER containing record of prelim conference -parties would submit 1. affidavits of witnesses 2. other evidence on the factual issues 3. position papers: set forth facts and law relied upon PERIOD for rendition of judgment: w/n 30d after receipt of affidavits and position papers OR expiration of 30d period *IF COURT CLARIFY MATTERS, issue ORDER specifying matters to be clarified + parties submit affidavits and other evidence w/n 10d from receipt of ORDER: render judgment w/n 15d after receipt of last affidavit OR expiration of period for filing the same REFERRAL FOR CONCILLATION: if required -dismiss action, REVIVE ONLY AFTER REQIURED CONCILIATION complied w/ AFFIDAVITS: -state only facts o DIRECT PERSONAL KNOWLEDGE OF THE AFFIANTS admissible in evidence -show competence to testify *if failed to state personally known facts and competence, 1. PARTY/COUNSEL may be subject to disciplinary action 2. affidavit may be expunged from the record PRELIMINARY INJUNCTION -may be granted in accordance w/r58 -prevent defendant from committing further acts of dispossession PRELIMINARY MANDATORY INJUNCTION to restore plaintiff in possession -filed w/n 5d from filing complaint for ejectment -decided by court w/n 30d from filing OWNERSHIP ISSUE -if raised and question of possession cannot be resolved w/o deciding issue of ownership, issue of ownership resolved only to determine the issue of possession JUDGMENT if courts find that the allegations in the complaint are TRUE: judgment in favor of plaintiff -for restitution of the premises -award: a. sums due as arrears/reasonable compensation for use and occupation b. attys fees c. costs if NOT TRUE: judgment for defendant -recover costs -if w/counterclaim: established: court render judgment for sum found in arrears *W/RE ISSUE OF OWNERSHIP: JUDGMENT CONCLUSIVE w/ respect to possession only, NOT A BAR bet same parties respecting title to the land or building APPEALS of judgment: MTC -> RTC -based on a. ENTIRE RECORD b. memoranda/briefs submitted by parties or required by RTC PRELIMINARY MANDATORY INJUNCTION IN CASE OF APPEAL -w/n 10d from perfection of appeal to RTC -issued by RTC -restore plaintiff in possession -grounds: 1. appeal is frivolous or dilatory 2. appeal OF PLAINTIFF is prima facie meritorious

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EXECUTION: GR: immediately executor X: (HOW TO STAY EXECUTION) 1. Appeal perfected 2. defendant files SUFFICIENT SUPERSEDEAS BOND -approved by MTC -executed in favor of plaintiff to pay rents, damages and costs accruing from time of judgment 3. defendant deposits to the court (pending appeal) the (w/contract) amount of rent due fr time under contract OR (w/o contract) reasonable value of the use and occupation of the premises for the preceeding month/period, at the rate determined by lower court judgment on or before 10th day of each succeeding month -deposit amounts w/ >court >authorized govt depositary bank -held there until final disposition of appeal -if defendant FAILS TO PAY abovementioned payments: execution may be ordered but appeal not barred >upon motion of plaintiff > + proof of failure to pay DECISION ON APPEAL by RTC: -dispose amounts deposited in accordance w/ the RTC decision -immediately executory -may still be appealed (but no provision as to supersedeas bond to stay execution... so talagang executory na) -w/charge in writing filed -w/ opportunity to comment and be heard -GROUNDS: MDAIASR 1. misbehavior in performance of official duties 2. disobedience of/resistance to a lawful writ/process/order/judgment of court 3. abuse of/any unlawful interference w/ processes and proceedings of court not constituting DIRECT CONTEMPT 4. improper conduct tending to impede/obstruct/degrade administration of justice 5. assuming to be an attorney/officer of a court, w/o authority 6. failure to obey subpoena duly served 7. rescue, attempted rescue of person/property in the custody of an officer -how commenced: *motu proprio by court against w/c contempt was committed *any formal charge VERIFIED PETITION -order respondent to show cause why he should not be punished for contempt Other formalities: 1. verified nga 2. supported by a. particulars b. CTC of docs, papers involved 3. comply w/ requirements for filing initiatory pleadings -if arose out of/related to a PRINCIPAL ACTION pending petition shall be docketed, heard and decided Gr: SEPARATELY X: court orders consolidation (no motion needed, discretionary upon court) WHERE TO FILE vs. RTC/officer appointed by it: w/ RTC Vs. lower court: w/RTC in place where lower court is sitting or w/ lower court, subject to appeal to RTC HEARING: release on bail -if no hearing: may release respondent on BOND (conditioned on appearance of respondent if may hearing na) -hearing day: court investigate charge, consider any comment, testimony, defense PUNISHMENT FOR INDIRECT CONTEMPT vs. RTC + 1. fine: P30k max 2. imprisonment: 6m max or both vs. lower court 1. fine: P5kmax 2. imprisonment: 1m max or both *WOE issued for the fine if violation of a ..writ of injunction tro status quo order -order to make restitution to party injured

R71. CONTEMPT

DIRECT CONTEMPT

Grounds: 1. misbehavior in the presence of the court 2. misbehavior so near a court as to obstruct/interrupt proceedings before the same: a. disrespect toward the court b. offensive personalities toward others c. refusal to be sworn or to answer as a witness d. refusal to subscribe an affidavit or deposition when lawfully required -summarily adjuged -penalty: IF RTC+ 1. fine: max P2k 2. imprisonment: max 10d Or both IF lower court 1. fine: P200 max 2. imprisonment: 1d max or both -REMEDY: not appeal but CERTIORARI/PROHIBITION execution: suspended pending resolution of petition + bond filed (condition: petitioner will abide by and perform judgment)

INDIRECT CONTEMPT 9

Cha Mendoza_ Special Civil Actions

CIVPRO REVIEWER_Leonen AY 2008-2009

If violation: refusal/omission to do an act yet in the power of respondent to perform: imprisonment by order of court until he performs it IF RESPONDENT RELEASED ON BOND AND FAILS TO APPEAR: Court may -issue another order of arrest -order bond forfeited and confiscated Or both ORDER OF RELEASE -may be issued when it appears that public interest would not be prejudiced by his release

CONTEMPT MAY BE APPLIED TO QUASI-JUDICIAL AGENCIES

10

Cha Mendoza_ Special Civil Actions

J/FOR of indirect contempt: appealable -execution NOT SUSPENDED BY APPEAL how to suspend: file BOND