XAVIER UNIVERSITY Civil Procedure
Compilation of Finals and Midterms Exams Judge Jose Escobido
Define the following: a. Civil Action
A civil action is one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong.
b. Special Proceeding
A special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact.
c. Action in personam
Action in personam – the decision is enforceable only against the parties . One which is directed against a specific person and seeks personal judgment. It binds only the parties of the case or their successors in interests.
d. Action in rem
Action in rem – the decision is enforceable against the whole world. One directed against the thing, property, or status of a person and seeks judgment with respect thereto against the whole world.
e. Action quasi-in rem
Is one directed against an individual named as defendant and the purpose of which is to subject his property to the obligation or lien burdening it. Ex. Foreclosure of mortgage / unlawful
detainer
f. Real action
Is one involving title, ownership, possession or nay interests in any real properties which include partition, condemnation, and foreclosure of mortgage on real property.
g. Personal action is one brought for -Recovery of Personal Property -Enforcement of some contracts
-Recovery of damages for breach of contracts; and
-Recovery of damages for the commission of an injury to person or property.
h. Mixed Action
Is one brought for the protection or recovery of real property and also for an award for damages sustained. Or for protection or recovery of real property.
i. Transitory Action
Is one which may be brought in the place of residence of the plaintiff or any of the principal plaintiffs or in the residence of the defendant or any of the principal defendants.
j. Local Action
One which has to be instituted in a particular place independently of the places of residences of the parties.
k. Right of action
Is a remedial right or right to relief guaranteed by law to a party to institute an action against a person who has committed a delict or wrong against him. It is the right to sue as a consequence of such delict.
l. Cause of action
It is an act or omission committed by the defendant in violation of the primary right of the plaintiff.
m. Venue
The place where the trial or geographical location on which an action or proceeding may be brought.
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What is jurisdiction? Distinguish jurisdiction from exercise of jurisdiction. What is original, concurrent and exclusive jurisdiction?
What is the jurisdiction of the RTC and MTC in civil cases?
May a real action be an action in personam? Yes. Ching v. CA. An action to recover a parcel of land is a real action but it is an action in personam, for it binds a particular individual only although it concerns the right to a tangible thing.May a personal action be an action in personam? May a real action be an action in rem?
Question of fact v. Question of Law - Jurisdiction of SC and findings of fact of CA
Action in rem v. personam , service of summons, jurisdiction over the person of defendant. Case: Action for recovery for real property.
Jurisdiction of RTC
Filing of action of unlawful detainer where period of lease not yet expired.
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1. Distinguish between right of action and Cause of action.
2. What are the elements of the Cause of Action?
Elements: hh. The legal right of the plaintiff;
ii. The correlative obligation of the defendant to respect that right; and jj. An act or omission of the defendant in violation of said legal right.
3. State the totality rule in determining the jurisdiction of courts in civil actions.
Rule 2 - Sec 5(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. (5a)
4. Spouses Lucy and Richard filed a petition for the adoption of Ara, the minor child of Spouses of Morato and Armina. After the filing of the petition, Ara killed her playmate Alma. Alma’s parents sued Spouses Lucy and Richard and Spouses Morato and Armina for damages. a. Are Lucy and Richard indispensable parties? No
b. Are Morato and Armina indispensable parties? Yes
5. Hibok-Hibok Corporation had a contract with Mantique Corp. under which Hibuk-hibuk would construct for Mantique a hotel and restaurant in Mahinog. Mantique required Hibok-hibuk to put
up a performance bond with Catarman Insurance as the surety. Hibok2 however, failed to finish the hotel restaurant on time, and besides Mantique discovered that materials used were
substandard. Mantique filed two actions. One action was breach of contract and damages against Hibok2 and it landed in Branch 1 RTC-Camiguin. The other was against Catarman Insurance on its liability under the performance bond, and it landed in Branch 2 of the same court. If you were the lawyer of Catarman Insurance, what would you do?
6. A brought an action against X and Y in one complaint before the RTC of CDO. As his first cause of action, A alleges that X purchased from him on various occasions premium rice worth 150k but refused to pay the said amount despite several demands. As his second cause of action, A alleges that Y likewise purchased from him on various occasions ordinary rice worth 180k but refused to pay the said amount despite repeated demands. The total amount of A’s demand against X and Y is 330k. Both X and Y now separately move to dismiss the complaint on the ground that the RTC has no jurisdiction over the case. How would you resolve the two motions.
The motion of X and Y cannot be granted. The RTC has jurisdiction over the case because under the totality rule the test of jurisdiction shall be aggregate sum of all the money demands, exclusive of interest and costs, irrespective of whether or not the separate claims are owned by or due to different parties. The totality rule applies when the cause of action arose from the same series of transactions and there is common question of law among them.
7. Juan Tiu imported a fertilizer from Taiwan. The fertilizer was shipped on board and this was
insured by luxury insurance against all risks at the port of departure under a marine policy with a note at a lower left side stamped the name of bell corp, as claim agent. When the cargo arrived at manila, some portion was in bad condition. Tiu then filed with Bell Corp. a formal statement of claim with proof of loss and demand for settlement corresponding to the value of the damage portion. After conveying the claim to its principal, who refused to pay the claim, Bell Corp informed Tiu that his claim could not be paid. Tiu filed an action against Luxury and Bell. Bell filed a motion to dismiss contending that it was merely a claim agent of the insurance company and therefore it was not the real party in interest. Bell Corp also contended that Tiu had no cause of action against it because it did not take part in the marine insurance. Are the two contentions tenable? Reasons.
SMITHBELL CASE
8. What is the venue of actions against non-resident defendants?
Rule 4 - Sec. 3. Venue of actions against nonresidents. - If any of the defendants does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff, or any property of said defendant located in the Philippines, the action may be
commenced and tried in the court of the place where the plaintiff resides, or where the property or any portion thereof is situated or found. (2[c]a)
9. A entered into a lease contract with B whereby A leased his house in CDO to B. It was stipulated in the lease contract that if A should violate the contract, he should be sued in Opol, Misamis Oriental, and if B should violate the contract, he should be sued in Tagoloan, Misamis Oriental. One year after the contract of lease was executed, B failed to pay the rentals for 6 months, so A filed an action for unlawful detainer in MTC of Tagoloan. B’s lawyer believes that the MTC of Tagoloan has no jurisdiction over the case because the property is located in CDO, and the stipulation is contrary to the Section 1, Rule 4 of the Rules of Court, as amended, therefore, it is void. Is B’s lawyer correct? Explain.
10. Banta was an operator and owner of JB Buslines. He resided in Iligan City but the office was in CDOC. Dongo was a Filipino and a resident of Butuan before he went to America. In Dec. 1996, Dongo went to Butuan for a vacation. During the vacation, he went to iligan city driving his own car. While he was in Marcos bridge in CDO, a bus lines of Banta bumped him causing damages to the car and injuries to him. Dongo, represented by his attorney-in-fact because he had already returned to America, filed an action for damages against banta in the RTC
Butuan.Banta filed a motion to dismiss on the ground of improper venue contending that the action should have been filed in iligan city where he resided. Rule on the motion
11. What does a signature of counsel in a pleading constitute?
Rule 7, S3: “…The signature of counsel constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief there is good
12. X corporation filed an action for collection against Y Corp. and PN was attached to the complaint. In its answer, Y Corp. specifically denied the allegations of the complaint and alleged that the person who contracted and obtained the loan from X Corp was not authorized by Y Corp. Y Corp. answer, however, was not verified. The RTC, upon motion, rendered summary judgment in favor of X Corp. On appeal, the CA affirmed. The case is now with the SC. Decide
13. State the rule on verification of pleading.
Sec. 4. Verification. - Except when otherwise specifically required by law or rule, pleadings need not be under oath, verified or accompanied by affidavit.
A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true and correct of his personal knowledge or based on authentic records.
A pleading required to be verified which contains a verification based on "information and belief, or upon "knowledge, information and belief," or lacks a proper verification, shall be treated as an unsigned pleading.
14. State the rule on forum shopping.
Rule 7 – Sec. 5. Certification against forum shopping. – The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed. Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false certification or non-compliance with any of the undertakings therein shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions. (n)
15. A filed suit against B and C for the recovery of personal property which, according to the complaint had been sold to him by the defendants’ father during the latter’s lifetime under a document entitled Deed of Sale. The substance of the document was pleaded in the complaint and a copy thereof was attached to the complaint. B and C filed an answer which disclaimed nature thereon allegedly belonging to their father appeared to be a forgery. At the trial of the case, B and C by means of an expert witness adduced evidence to prove that the seller’s signature in the Deed of Sale was a forgery. A objected saying that the genuineness and due execution of the Deed of Sale was deemed admitted because the answer was unverified
inasmuch as the verification was made only on the express basis of best information and belief. Resolve the objection with reasons.
The objection of A is untenable. As a rule, where an action or defense is founded upon a written instrument alleged is not specifically denied under oath, the genuineness and due execution of such document shall be deemed admitted.
But the case at bar contemplates of the exception, because the adverse party does not appear to be a party to the instrument, it was the father of B and C who signed the document. The verification is not necessary when it is not required by law and verification must be of a personal knowledge or based on authentic record.
Rule 8 – Sec. 8. How to contest such documents. – When an action or defense is founded upon a written instrument, copied in or attached to the corresponding pleading as provided in the preceding section, the genuineness and due execution of the
instrument shall be deemed admitted unless the adverse party, under oath, specifically denies them, and sets forth what he claims to be the facts; but the requirement of an oath does not apply when the adverse party does not appear to be a party to the
instrument or when compliance with an order for an inspection of the original instrument is refused. (8a)
16. In his answer to the compliant, X alleged that he does not owe Y any sum of money, that he executed the Promissory Note attached to the complaint to enable Y to show to her husband to explain the disappearance of the amount from the conjugal funds as Y lost the same in the casino. The answer was not verified. At the trial, the lawyer of Y objected to the testimony of X as to his accommodation story because, as the answer was not verified, he was deemed to have admitted the genuineness and due execution of the PN. Rule on the objections.
The objection of Y’s lawyer is correct. Rule 8, Sec 8 of the Rules of Court provide that on actions based on an actionable document which is described in and attached to the complaint and served upon the adverse party, the failure of the defendant in his answer to deny
specifically deny under oath the genuineness and due execution of the instrument is tantamount to the implied admission of the genuineness.
17. Association of Future Saints (AFS), a group of elderly and impotent men in CDO, is active promoting sexual morality among men whose sexual prowess has totally disappeared. It is a very well known association and young men look forward to becoming members of it when they cannot also do it anymore. The association acquired real property in CDO. It conditionally sold the land to a pretty lass. Upon the happening of the condition, the lady demanded delivery of the possession of the land. The association refused. So the lady filed an action to recover
possession of the land against AFS. Summon was served on General Mando (ret), a member of AFS, and a next door neighbor of the lady. No answer was filed. So the court upon motion
declared AFS in default. Subsequently the President of AFS, Mr. Ugod-ugod Na, filed a motion to lift the order of default on the ground that there was improper service of summons because as President of AFS the summons should be served on him and not on Gen. Mando. Resolve the Motion.
The motion is untenable because AFS is an association without juridical personality. An association or entity without juridical personality may be served with summons and sued in the name by which they are generally or commonly known be effected upon all the
defendants by serving upon the person in charge of the office or place of business maintained in such name.
Rule 14 – Sec. 8. Service upon entity without juridical personality. – When persons
associated in an entity without juridical personality are sued under the name by which they are generally or commonly known, service may be effected upon all the defendants by serving upon any one of them, or upon the person in charge of the office or place of business maintained in such name. But such service shall not bind individually any person whose connection with the entity has, upon due notice, been severed before the action was brought. (9a)
18. X filed an action for reconveyance and cancellation of Torrens Title against y, who had been living abroad for many years and who was already six feet under the ground when the suit was filed. Summons by publication to Y or to his estate was directed by the trial court. Despite the publication, Y did not file his answer. A decision was rendered in favor of X and it was served by publication. A son of Y learned of the case and filed a petition to set aside as null and void the decision for lack of jurisdiction. X oppose the petition contending that an action for cancellation of title was quasi in rem and that service of summons by publication could be allowed considering that Y was a non-resident of the Philippines. Is the contention tenable? Explain.
CHING CASE
19. A and B, both residents of Batangas, entered into a Contract of Lease over a parcel of land belonging to B located in Cebu City. A filed a complaint before the RTC in Batangas for the rescission of the lease. B filed a motion to dismiss on the ground that the Batangas Court did not have jurisdiction over the subject matter, the land being located in Cebu City. Resolve the motion.
20. What is the effect of failure to serve written interrogatories under Rule 25?
21. What is the effect of failure to file and serve request for admission under Rule 26? 22. Distinguish Judgment on the pleadings and summary judgments. R34
1. A agreed to sell to B for 500k on installment basis a parcel of land located in Camiguin. A is a residence of Malaybalay and B in CDOC. In the contract to sell executed by A and B among the stipulations were that title to the land should pass to B only after the purchase was fully paid and that after full payment, A would execute a deed of absolute sale in B’s favor. After paying 2 installments but before full payment of the purchase price, B requested that the land be resurveyed to determine the actual area of the land which was along the beach. A agreed and after resurvey, it was found that because of natural erosion caused by the waves of the sea, the area of the land described in the Certificate of Title was reduced by 20%. B wanted that the purchase price be reduced also by 20%. And the trouble began.
a. After paying 80% of the purchase price, B demanded that A execute a deed of absolute sale as agreed upon in the contract to sell. A refused saying that B
should pay first the balance of 20%. B filed in Camiguin an action against A for the latter to execute the absolute deed of sale. A filed a motion to dismiss on the ground of improper venue arguing that the motion was in personam therefore must be filed in Bukidnon where he resided. Supposing you were the Judge, how would you rule on the at motion?
Malaybalay
b. Instead of filing a motion to dismiss, A filed his answer and set up the counterclaim that his contract with B be rescinded for B’s failure to pay the entire amount of the purchase price. Is the counterclaim set up by A permissive or compulsory? Explain.
Compulsory
Rule 6 - Sec. 7. Compulsory counterclaim. - A compulsory counterclaim is one which, being cognizable by the regular courts of justice, arises out of or is connected with the transaction or occurrence constituting the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. Such a counterclaim must be within the jurisdiction of the court both as to the amount and the nature thereof, except that in an original action before the Regional Trial Court, the counterclaim may be considered compulsory regardless of the amount. (n)
c. The action referred to above was filed with the RTC, but at the time it was filed the balance of 20% amounted to 100k. A filed a motion to dismiss on the ground that the court had no jurisdiction since the balance of the purchase price was only 100k. Is the motion tenable? Why? Would your answer be the same if at the time the action was filed the balance was 300k? Why?
RTC
d. Suppose that after the execution of the contract to sell, B immediately occupied the land and built a beach house. Suppose also that after B demanded the reduction of the purchase price by 20%, A wanted to file an action first to recover possession of the land
. Suppose also that the 20 % balance amounted to 100k. In what court should the action be filed? Explain.
e. Referring to question d, after A filed an action to recover possession of the land , B filed an answer with counterclaim set up prayed that A be ordered to execute the deed of absolute sale mentioned in the contract to sell. Is the counterclaim permissive or compulsory? Explain.
f. Referring to question A above, after B filed his complaint, the sheriff served the summons on A through A’s brother who lived in Hubangon. A’s brother after receiving the summon s left for Russia and stayed there for 6 months. Apparently, A’s brother forgot about the summons because one month after B, with notice to A, filed a motion to declare A in default for failure to file an answer and to render judgment on the basis of the complaint. The judge granted the two motions, and in the judgment of the judge ordered A to return to B all the
payments made by him plus interest of 30% per annum until the entire amount shall have been fully paid.
(1) Was the order of the judge declaring A in default valid? Explain.
(2) Assuming that the order was valid, was the judgment rendered by the court valid? Explain.
2. Aga filed an action for forcible entry against Nino. During the pendency of the case, Nino filed an action against Aga to quiet title on the property involved in the forcible entry case. Nino then filed a motion to dismiss the forcible entry case on the ground of litis pendencia because of his action to quiet title filed against Aga.
v. Rule on the motion.
w. Supposing it was Aga who filed the motion to dismiss. Rule on the motion.
x. Supposing the property involved in these cases for forcible entry and quieting of title was located in Velez, CDOC, and its value was not less than 16M. In what court should the two cases be filed? Explain.
3. A filed an action against B to recover real property located in Cogon Market, CDOC. When the Sheriff served the summons on B, he discovered that the tenant of the house which B rented from C was no longer B but D who informed the Sheriff that B left the premises eleven months before. The Sheriff went to C, the owner of the apartment, who gave the sheriff the same information. After one month, on the basis of these facts, A filed a motion to declare B in default for failure to file his answer. The court granted the motion and allowed A to present his evidence ex parte. Afterwards, the court rendered judgment in A’s favor. Seven months after B, who had already resided in Batac, Ilocos Sur because of his wife who was a native of said place, spent his vacation in CDOC, and he learned from his friends that a decision was rendered against him in a case involving his real property located in Cogon Market, CDOC.
y. B’s lawyer filed an action with the RTC to annul the judgment on the ground that the court did not acquire jurisdiction over his person. Do you agree with B’s Lawyer? Explain.
Yes, service of summon
z. Could B still file a petition for relief from Judgments? Reasons. No. Rule 38, 47
aa. Was the order of the Court declaring B in default tenable? Why? No
bb. Assume that B spent his vacation in CDOC 20 days after A filed his action. B immediately filed a motion to dismiss the case on the ground that the court did not acquire jurisdiction over his person and on the ground that A had no cause of action because A had already sold the land to B which sale was evidenced by an absolute deed of sale executed by A in favor of B and a copy of the document was attached to the motion. If you were the Judge, how would you resolve the motion.
4. Congress passed a law requiring convicted persons and those under prosecution for criminal offenses to blood sample to the jail authorities for DNA test and examination. A, a lawyer, was convicted for violation of anti-fencing law. In addition, A had a pending administrative case before the SC for disbarnment for his refusal to support a child born out of wedlock. A filed before the RTC a special civil action for certiorari with application for PI against the Bureau of Jail Mgt and the DILG for requiring him to submit blood sample in compliance. A’s grounds were
that the law violated his right to substantive due process and his right to equal protection of the law. The RTC decided against A, who appealed the decision the decision of the court to the CA by means of a petition for review. The CA affirmed in toto the decision of the RTC. A filed a special civil action for certiorari with the Sc assailing the CA decision.
s. Do you agree with A when he chose the remedy of prohibition in assailing the action of the Bureau of Jail & Mgt and DILG? Explain.
No, he should have filed a petition for mandamus for them to refrain or desist from taking blood samples for DNA test.
t. Was A correct in appealing the decision of the RTC to the CA by petition for review?
No, he should have filed a notice of appeal to the RTC and paying at the same time the corresponding docket and lawful fees. For the action filed by A in the RTC is an original action. Petition for review is only applied when the judgment rendered by the RTC is in exercise of its appellate jurisdiction.
u. Was A in error when resorted to an original action before the SC in assailing the decision of the CA? Explain.
Yes. Special civil actions for certiorari can be availed only in cases where there is no speedy and adequate remedy in the ordinary courts of law. He should have filed a petition for mandamus.
5. Maria and Juan entered into a contract of lease over a condominium unit located in CDO. It was stipulated in the contract of lease that Juan, the lessee, should repair the unit at his own expense without reimbursement from the lessor within 6 months from the effectivity of the contract of lease and should pay the rent of P30,000 every month. After one year, Juan failed to repair the unit and also failed to pay the rental. Then Juan vacated the premises. Maria filed an action against Juan for sum of money representing the rentals of the new unit which Juan had not paid for one year. Maria filed the action with the RTC.
p. Juan filed a motion to dismiss contending that the RTC had no jurisdiction over the case because Maria was in reality suing on a contract of lease, hence, the city court had jurisdiction over the case. Is the contention tenable?
No, the contention of Juan is not tenable. It is the RTC that should have jurisdiction over the case. The amount of the claim is 360k which is the unpaid rental for one year.
q. Six months after, Maria filed another action with the city court of CDO against Juan for damages alleging that for failure of Juan to repair the unit as stipulated in the contract of lease. Maria suffered damages in the amount of 150k. Juan filed a motion to dismiss on the ground of pendency of another action. If you were a judge, how would you rule of the motion?
The motion should be granted on the ground of litis pendencia. For the non-payment of rental and the failure of Juan to repair the unit as stipulated in the contract of lease constitutes only one delict or wrong even if several rights were violated. While there are two stipulations in one contract were violated, a contract embraces only one cause of action. A judgment on the merits of one is a ground for dismissal of the other. Thus, there should only be one suit for the recovery of unpaid rentals and damage to property.
r. Referring to the foregoing question, assume that Maria alleged that she suffered damages in the amount of 500k for failure of Juan to repair the unit as stipulated
in the contract, and her action for damages was filed with the RTC, and Juan filed a motion to dismiss on the ground of pendency of another action, if you were the judge how would you rule on the motion.
The motion should be dismissed on the ground of pendency of another action. Because even if the two cases are to be heard by different courts, it still arises from one cause of action.
6. A, B, C, D and E are brothers and sisters. Their parents left a parcel of land located in Velez street, CDOC. A few days after their father died, B C D & E discovered that A was in possession of a TCT covering the parcel of land in A’s name. The land has a building on it. The siblings filed an action to annul the TCT issued in A’s name. After trial , the trial court rendered a decision nullifying the TCT in A’s name and declaring that all the siblings were co-owners of the land with equal interest. After the decision became final & executory, the siblings filed a motion for execution of the decision. The court issued the writ pertaining to the land and the building. A assailed the validity of the writ on the ground that he owned the building and therefore it should not be included in the writ. The siblings claimed that their parents owned the building. It appears that in his answer, A did not allege that he owned the building.
m. Was A required or obliged to allege in his answer that he was the owner of the building? Why?
A should alleged in his answer that he owns the building. The building which stood on the lot is considered as part of the land on which it stands and is therefore considered be included or covered by the TCT issued in A’s name which B C D & E sought to be annulled.
n. What is the effect of A’s failure to allege in his answer that he owned the building standing on the land?
A’s failure to allege in his answer that he owns the building in his answer is in effect an implied admission that the building is owned by his parents and therefore should be divided among him and his siblings.
o. Was the inclusion of the building in the writ of execution valid? Why?
Yes, the inclusion of the building in the writ of execution is valid. His failure to alleged ownership of the building led the court to believe that the building is owned by the parents and is also covered by the TCT. The law on property provides that a building attached to a real property is already considered part of the land.
7. Ping and Fred were friends. The former lived in Iligan City and the latter in CDO. On March 15, 2000, Ping borrowed 100k from Fred and the loan was payable within 6 months. 4 months after, or On July 15, 2000, Ping borrowed another 150k from Fred, who willingly gave the loan because of their friendship. The second loan was also payable within 6 months. Because of their friendship Fred only charged an interests of 5% per month on both loans. Or course, the 2 loans were evidenced by PN. Six months after the first loan was contracted, Ping was unable to pay it. Fred immediately demanded payment. Ping could not pay because after their puppies died his wife left him and withdrew all their funds from the bank and went to South Africa for good. On October 15, 2000, Fred filed an action with the RTC for collection with PA against Ping praying that Ping be ordered to pay his total principal obligation of 250k, accumulated interest and attorney’s fees of 20k.
f. If you were the judge, and assuming that the bond was filed, would you grant the application for PA?
I will not grant the application for preliminary attachment since the ground as invoked in the case is not among of the grounds under Rule 57, Section 1.
Rule 57 – Sec. 1. Grounds upon which attachment may issue. – At the commencement of the action or at any time before entry of judgment, a plaintiff or any proper party may have the property of the adverse party attached as security for the satisfaction of any judgment that may be recovered in the following cases:
(a) In an action for the recovery of a specified amount of money or damages, other than moral and exemplary, on a cause of action arising from law, contract, quasi-contract, delict or quasi-delict against a party who is about to depart from the Philippines with intent to defraud his creditors;
(b) In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer or a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty;
I In an action to recover the possession of property unjustly or fraudulently taken, detained or converted, when the property, or any part thereof, has been concealed, removed, or disposed of to prevent its being found or taken by the applicant or an authorized person;
(d) In an action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upon which the action is brought, or in the performance thereof;
(e) In an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors; or
(f) In an action against a party who does not reside and is not found in the Philippines, or on whom summons may be served by publication. (1a)
g. If you were Ping’s lawyer, would you file a motion to dismiss? And if you would, on what ground/s. Explain.
Lack of Jurisdiction. Amount Due is 100k and falls within the jurisdiction of MTC.
h. Assume that Ping’s lawyer filed a motion to dismiss, and assume further that the judge was convinced with Ping’s lawyer argument, and accordingly dismissed the case. Immediately upon receipt of the order dismissing the case, Fred’s lawyer filed with the CA a petition for certiorari under Rule 65. Do you agree with Fred’s lawyer? Why?
No. Fred’s lawyer should have first filed a motion for reconsideration in the same court, and if such is denied, then he can file a petition for certiorari.
No.File a Notice of Appeal under Rule 42.
i. Was the order of the court dismissing the case final and executory?
No, it can still be appealed. It will only be final and executory after the lapse of the period to appeal and no appeal has been duly perfected, after the same shall be resolved with finality.
j. Assume that the CA granted Fred’s petition for certiorari. Ping wanted to appeal the decision of the CA to SC. State the procedure of appeal from the CA to the SC, and state the reasons for which the SC may review the decision of the CA.
Petition shall be filed within 15 days from notice of the judgment or final order or the resolution with payment of Docket Fee and other lawful fees and deposit for costs before the expiration of the reglementary period . submit 18 copies of the petition and Proof of service of a copy thereof shall be submitted together with the petition.
The reasons for which the SC may review the decision of the CA are:
a. When the court a qui has decided a question of substance, not theretofore determined by the SC, or has decided in a way probably not in accord with law or with the applicable decisions of the SC;
b. When the court a quo has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such departure by a lower court, as to call for an exercise of the power of supervision.
8. B brought his wife to Russia for medical treatment. While B was in abroad, A filed an action against B with application for TRO and PI. The notice could not be effected because the sheriff discovered after diligent efforts that there was nobody in the house of B. Upon filing of the complaint and receiving the report of the sheriff, the Executive Judge raffled the case and issued TRO without requiring A to put up a bond. B was not notified of the raffling. After the case was raffled to a branch, the latter without holding a summary hearing extended the TRO issued by the Executive Judge.
c. Was the raffling of the case valid?
No, the raffling of the case was not valid because it is necessary that the adverse party must be notified. In the case at bar, the adverse party was not notified.
d. Was the issuance of the TRO without requiring the applicant to put up a bond valid?
Yes the TRO was valid but only up to 72 hours.
e. Was the extension of the validity of the TRO valid? Why?
No, the extension was invalid because it was done without the judge holding a summary hearing in order to determine the necessity of extending said TRO.
CIVIL PROCEDURE
(For additional questions, refer to the mid-term exam compilation)
Jurisdiction
b) Q: Action by P against D for unlawful detainer in the MTC for failure to vacate premises being leased on a month-to-month basis after notice of termination. D answered, alleging as affirmative defense lack of jurisdiction of the MTC for failure of P to make on him a prior demand to vacate and counterclaiming for P 10,000.00 attorney’s fees. During the pre-trial, it turned out that P sent his notice to vacate by
registered mail but this was not effectively delivered to D, and so the MTC dismissed the case for lack of jurisdiction but awarded D attorney’s fees of P 5,000.00. Did the MTC act correctly?
A:
Complaint / Supplemental Complaint
Q. May the trial court grant a party relief in excess of or different in kind from that prayed for in his pleading? (1999 Finals 1a)
A. Generally yes, where the evidence so warrants (rule 10, Sec. 5). Exception: where the party has been declared in default (Rule 9, Sec. 3[d]).
b) Q: In May 1996 P sued D for mandamus alleging that he was the lowest or best bidder for janitorial services for 1996 but that D unjustifiably refused to award the contract to him and prayed that the judgment be rendered compelling D to award him the contract. The year 1996 lapsed, P moving for the admission of a supplemental complaint alleging that he should instead be awarded damages for unrealized profits. Should P’s motion to admit supplemental complaint be admitted?
A: No answer.
Counterclaim
Q. Action on a fire policy against an insurance company which issued it. The defendant insurer filed a third-party complaint against a re-insurer which set up in his answer the defense alleged by the defendant insurer that the loss was caused by the willful act of connivance of the plaintiff insured. May the third-party defendant re-insurer counterclaim against the plaintiff? (1999 Finals 7a)
A. Yes, provided that the counterclaim be in respect to the plaintiff’s claim against the third-party plaintiff. (Rule 6, Sec. 13)
Q. Upon plaintiff’s failure to appear at the pre-trial despite notice, what is the proper recourse for the defendant who would like to pursue his compulsory counterclaim in the same proceeding? (1999 Finals 3b)
A. He should not move for dismissal of the complaint under Section 3, Rule 17, because this will automatically carry with it the dismissal of the compulsory counterclaim. Instead, defendant should only move to have plaintiff declared non-suited on the complaint so that the latter can no longer present his evidence thereon, and simultaneously move that he be declared as in default on the compulsory counterclaim, and reserve the right to present evidence ex-party on his counterclaim. (BA Finance Corp. v. Co, 224 SCRA 163 [en banc] {1993})
---- This answer is wrong. See Sec. 3, Rule 17. It must be noted that this question was taken from a pre-1997 Rules exam, and the rules were different then.
Summons
b) Q: X company, an American firm, engaged in the manufacture of athletic uniforms, imported soccer jerseys from P company, a Philippine textile mill, but refused to pay for them. Hence, P company filed in the RTC an action against X company for the collection of the price of the soccer jerseys, the complaint alleging that X company was doing business in the Philippines and that summons be served upon its agent in the Philippines. X company entered its special appearance and challenged the validity of the service of summons on the ground that it was not doing business in the Philippines and that the transaction sued upon was an isolated transaction. Was the summons validly served?
A: Yes, under Rule 14, Section 14, X company “was doing business” in the Philippines because
its purchase of the soccer jerseys was in the ordinary course of its business considering that it was engaged in the manufacture of athletic uniforms. (Litton Mills, Inc. v CA, GR No. 94980, May 15, 1996, 2nd Div.) Comment: Note that under the 1997 Rules, the term is
“has transacted business.” Thus, even isolated transactions can be litigated.
Q: In an action for partition of real properties against a non-resident defendant who is not found in the Philippines, how may this defendant be served summons? A: No answer.
Execution
Q. Who may file a “terceria,” with whom is it filed and what is the effect of its filing? (1999 Finals 4b)
A. A “terceria” is a third-party claim under Section 17, Rule 39 and is filed by a third-party claimant with the officer making the levy and it is an affidavit of the claimant’s title with copy thereof served upon the judgment creditor. With the filing of this affidavit, the officer is not bound to keep the property unless the judgment creditor indemnifies the officer against such claim by an adequate bond.
b) Q: An ejectment action for non-payment of rentals was compromised by the parties. Their compromise agreement, which the MTC approved, provided for payment to the plaintiff by defendant of specified amounts every month for 14 consecutive months, and that the failure of defendant to pay 3 consecutive installments shall entitle the plaintiff to a writ of execution. Defendant having failed to pay the first 3 stipulated installments, the MTC on plaintiff’s motion issued a writ of execution. Acting on this writ, the sheriff served on defendant a notice to vacate the premises. Any way for defendant to resist the implementation of the execution writ?
Appeal and other Post-Judgment Remedies
b) Q: The appellant was delayed for one (1) month in paying to the Court of Appeals his docket fee. Appellee therefore moved to dismiss his appeal but appellant countered by saying that he neglected to pay the docket fee on time because he was to busy. Rule on the motion to dismiss appeal.
A: Motion to dismiss appeal granted. Failure of the appellant to pay the docketing fee is a ground for the dismissal of the appeal. (Rule 50, Sec. 1) Appeal within the reglementary period is mandatory and jurisdictional. Appellant’s excuse for delayed payment is a poor excuse. (Pedrosa v Gil, GR No. 120804, June 14, 1996; 1st Div.)
Q. By what mode can a party seek the review of an order denying his petition for relief from judgment? (1999 Finals 1b)
A. Only by an appropriate special civil action under Rule 65 and not by an appeal. (Rule 41, Sec. 1[b])
========== II. JURISDICTION
Introductory/general concepts
Q. Up to what stage of a civil action may the issue of jurisdiction be raised? (5%) [1997 Midterms IIIa]
A. In case of jurisdiction over the subject matter, the question may be invoked at any stage of the proceedings (even on appeal), but the issue of jurisdiction over the person of the defendant must be raised either in the motion to dismiss or by way of an affirmative defense in the answer. (Amigo v CA, 253 SCRA 382).
Q: P sues D in RTC-Manila to recover P100,000.00 and a parcel of land located in Manila. P is a Manila resident while D is a resident of Quezon City. D moves to dismiss on the ground of lack of jurisdiction. What ruling? (5%)
A: Motion denied. The claim for P100,000.00 may be properly joined with the claim for recovery of real property, and RTC has jurisdiction over such money claim since it has jurisdiction over the claim for recovery of real property. (Rule 2, Sec. 5[c])
Q: Suppose you are the counsel for D who is sued in the MTC for unlawful detainer and on a P50,000.00 promissory note (not related to the lease subject of the action), what would be your proper and effective procedural recourse? (5%)
A: I will move for severance of one cause of action because of misjoinder of the two causes of action, one - to wit, the unlawful detainer action - being a special civil action. (Rule 2, Secs. 5 [b] and 6)
Q: Last February 1990, T died in Quezon City, his place of residence, leaving a will. May the RTC of Bulacan take cognizance of the petition for the probate of his will even if he left no property in Bulacan? (5%)
A: Yes, deceased's residence or location of his estate is not an element of jurisdiction of the probate court but is merely one of venue. So, RTC-Bulacan may take cognizance of the petition for probate if there is no objection to the venue.
Jurisdiction (subject matter) of the different levels of courts in civil cases
Q. P, a Manila resident, filed a collection action against C and D in RTC Manila, alleging a total claim of P230,000 (P180.,000 for principal and P50,000 for attorney's fees) against C based on a promissory note and a claim of P100,000 against D based on the unpaid purchase price of goods delivered. Both C and D moved to dismiss for lack of jurisdiction. Rule on both motions to dismiss. (1996 Midterm Exam VII)
A. Both motions to dismiss granted. Jurisdiction pertains to the MTC because the total amount (exclusive of attorney's fees) of each cause of action is below the jurisdictional minimum of P200,000 for RTC jurisdiction. Joinder of the 2 causes of action against C and D is improper because there is a misjoinder of parties, the two pleaded causes of action not arising out of the same transaction or series of transaction and there being no question of law or fact common to C and D, and joinder of causes of action is subject to the rule on joinder of parties. (See Flores v. Mallare-Phillipps, 144 SCRA 377 [2nd. Div., 1988])
Q. A, a Manila resident, bought a color TV set at the price of P15,000.00 on 24 monthly installments from B Co., a Manila-based appliance company. The transaction was covered by a conditional sale contract. A defaulted in his monthly installment payments after having paid 5 such installments. In what court may B Co. bring the action to recover the TV set? (1993 Midterm Exam VIb)
A. No answer
Q. P corporation filed an action against D in the RTC to collect certain amounts of money amounting to P 2 million on its claim that D, while president of P corporation and by using his position as such president and through fraud and misrepresentation, misappropriated and diverted to his personal use these corporate funds. D moved to dismiss the complaint on the ground that it falls within the jurisdiction of the Securities and Exchange Commission (SEC). Rule on the motion to dismiss. (5%) [1995 Finals VIIIa]
A. Motion to dismiss granted. The complaint alleges acts committed by a corporate officer against the corporation, which amounts to fraud and misrepresentation and thus detrimental to the interest of the public. Therefore, what was otherwise an ordinary action for a sum of money has been converted to an inter-corporate controversy which calls for the adjudicative powers of the SEC under Sec 5 (a) of PD 902-A. (Alleje v CA, 240 SCRA 495).
*** note amendment to PD 902-A in the Securities Regulation Code of 2000 transferring adjudicative powers of the SEC over certain cases to the regular courts.
Q. P, a senior Vice-President of a corporation, was dismissed for lack of confidence. Aggrieved, P sued the company for illegal dismissal with prayer for back wages, reinstatement, damages and other benefits before the Labor Arbiter. The company moved to dismiss on the ground that the Labor Arbiter has no jurisdiction on the over the action. Rule on the motion. (5%) [1997 Midterms VIa]
A. Motion granted. Jurisdiction properly pertains to the Securities and Exchange Commission because the dismissal of a corporate officer is a corporate act and/or an intra-corporate controversy. (Estrada v NLRC, GR No. 106722, 04 October 1996)
*** note amendment to PD 902-A in the Securities Regulation Code of 2000 transferring adjudicative powers of the SEC over certain cases to the regular courts.
Q. What is the legal effect of the non-payment of the docket fees in full? (5%)
A. The court does not acquire jurisdiction over the subject matter in the case. Therefore, the entire proceeding undertaken in the case are null and void. [Hodges v. CA185 SCRA 281 (1990)]
Q: P sues D in RTC-Manila to recover P100,000.00 and a parcel of land located in Manila. P is a Manila resident while D is a resident of Quezon City. D moves to dismiss on the ground of lack of jurisdiction. What ruling? (5%)
A: Motion denied. The claim for P100,000.00 may be properly joined with the claim for recovery of real property, and RTC has jurisdiction over such money claim since it has jurisdiction over the claim for recovery of real property. (Rule 2, Sec. 5[c])
Q. Action by P against D in the RTC for a sum of money was sought to be dismissed by D on the ground of prescription. The motion to dismiss was denied and D brought a special civil action for certiorari in the CA against the order of denial of his motion to dismiss. The CA dismissed the petition. Then, D filed his answer, after which trial was held and judgment rendered against D. On appeal from this judgment to the CA, D filed a motion to dismiss the complaint on the ground of lack of jurisdiction, alleging htat P had not paid the appropriate docketing fees in the trial court. Rule on the motion to dismiss. A. Motion to dismiss denied. Although the payment of the proper docket fees is a jurisdictional requirement, the TC may allow the plaintiff in an action to pay these fees within a reasonable time before the expiry of the applicable prescriptive or reglementary period. But if the plaintiff fails to comply with this requirement, defendant should timely rise the issue of jurisdiction or else he would be considered in estoppel. Here, D filed an answer and participated in the proceedings before the TC. It was only after judgment was rendered against him that he raised the issue of jurisdiction. While the lack of jurisdiction ... may be raised at any stage of an action, the party raising such question may be estopped if he has actively taken part in the very proceedings which he questions and he only objects to the court's jurisdiction because the judgment or decision subsequently rendered is adverse to him. (National Steel Corp. v CA)
III. VENUE
Q: Last February 1990, T died in Quezon City, his place of residence, leaving a will. May the RTC of Bulacan take cognizance of the petition for the probate of his will even if he left no property in Bulacan? (5%)
A: Yes, deceased's residence or location of his estate is not an element of jurisdiction of the probate court but is merely one of venue. So, RTC-Bulacan may take cognizance of the petition for probate if there is no objection to the venue.
IV. PARTIES Party in Interest
Q. A, owner of an improved city lot, leased the same to B. While B is in possession, he was dispossessed by C. B, therefore, filed an action against C to recover possession. C contested upon the ground that B, not being the owner of the land, is not the real party in interest. Is C's contention correct? (5%)
A. If the action filed is for forcible entry wherein the issue is only possession de facto, B, as the lessee, has a right of action against C to recover the same. B is a party in interest in the sense that he has a present substantial interest in the land, the possession of which he had been deprived.
Capacity to sue and be sued
Q. X Company, a corporation incorporated under the laws of Michigan, USA, entered into a "representative agreement" with Y Company, a domestic corporation, for the sale in the Philippines of X Company's electronics products in consideration for a stipulated commission. After the agreement was in force for a year, X Company terminated it and then brought an action in the RTC-Makati to enjoin Y Company from dealing in similar products as those of X's. Y Company moved to dismiss the action on the ground that X Company, being a foreign corporation not licensed to do business in the Philippines, has no capacity to sue. Rule on the motion to dismiss. (10%) [1997 Midterms I]
A. X Company may well be said to be doing business in the Philippines because of the extensiveness and regularity of the sales of its products in this country whereby it made Y Company its mere agent in pursuit of its business. However, Y Company is estopped to challenge the personality of X after it has acknowledged the same by entering into a contract with it. This result is dictated by fair play. A person contracting with a foreign corporation cannot take advantage of the latter's non-compliance with the licensing requirement where such person has received the benefits of the contract. (Communication Materials and Design Inc v CA, GR 102223, 22 August 1996)
Joinder of parties
Q. D purchased a car from P, a car dealer, on installments and secured the purchase price balance (covered by a promissory note) with a chattel mortgage on the car. While the purchase price was not yet fully paid and the mortgage on the car still existing, D
sold the car to E. With D having defaulted on the payments, P, seeking to foreclose the chattel mortgage, sued out a writ of replevin against D and E, but since D could no longer be served with summons, P moved to drop D as defendant. Rule on P's motion to drop D. (10%) [1996 Midterms III]
A. The motion to drop D as defendant cannot be granted without dismissing the complaint because D is an indispensable party. The replevin suit is anchored on P's alleged right to possess the car and which right in turn is founded on the alleged default of D. If the case against D is dismissed, there would be no remaining cause of action against E. P's right to possess the car is conditioned on D's actual default and this default cannot be established in D's absence. (Servicewide Specialists Inc. v CA, GR No. 103301, 08 December 1995.)
Substitution of parties
Q. Plaintiff filed a petition for mandamus to compel the then municipal mayor to issue to him the municipal license and permit to resume operations of his cockpit. Pending the action, the mayor was dismissed from office. After trial, the court issued the writ of mandamus and adjudged defendant mayor liable for damages. In due course, the sheriff levied execution of the judgment for damages on defendant mayor's properties. Is the levy valid? (10%) [1997 Midterms IV]
A. The levy is void because the judgment is void and without any legal effect. The judgment is void because there was no substitution, pursuant to Rule 18, Section 3, of defendant mayor and the filing of a supplemental pleading showing that defendant mayor's successor had adopted or continued the defendant mayor's policy to deny the cockpit license. (Galvez v CA, GR 119193, 29 March 1996.)
New/additional parties: impleader
Q. What is the effective recourse of the defendant where the plaintiff did not implead an indispensable party? (1993 Midterm Exam IIb)
A. Defendant should move for an order directing the plaintiff to amend its complaint by impleading the indispensable party. Upon plaintiff's failure or refusal to obey this order, the action should be dismissed. (Rule 17, Sec. 3; National Development Co. v. Court of Appeals, 211 SCRA 422 [1992]).
Q. Action by P against D in the RTC for a sum of money wherein D impleaded X as a third-party defendant on the claim that X is liable to plaintiff by way of subrogation to D's liability. Judgment was rendered ordering D to pay P and X to indemnify D for this payment. X timely appealed the judgment to the CA, but did not appeal and so P sued out a writ of execution against him after the lapse of the 15-day period for D to appeal. Is the writ of execution valid? (5%) [1999 Midterm X]
A. Yes. The third-party complaint is independent of and distinct from the complaint, but is allowed in the original and principal case to avoid circuitry of action and unnecessary proliferation of lawsuits and to dispose expeditiously in one litigation the entire subject matter arising from one particular set of facts. An appeal by any party from such judgment does not inure to the benefit of the other party who has not appealed nor can it be deemed to be an
appeal of such other party from the judgment against him. (Firestone Tire & Rubber Co. of the Phils. vs. Tempongko, 27SCRA 418 [1969])
New/additional parties: intervention
Q. P sues your client D, to recover possession of a parcel of land. D tells you that his wife acquired this parcel of land from its former owner, X. Is there a way by which D may cause X to be impleaded? (1996 Midterm Exam Ia)
A. Yes. D should have his wife intervene in the case and once admitted as intervenor, the wife should move to be allowed to a file a third-party complaint against X. D himself cannot file this third-party complaint against X because he has no privity with X. (Morada v. Caluag, 5 SCRA 1128 [1962])
Q P sued A, B, C and D to recover from each of them different pieces of jewelry which were allegedly delivered to each of them as a commission agent of the plaintiff. The jewelries were delivered on different dates. If you were counsel for all the defendants, what would be your proper recourse?
A. I would ask that all but one defendant be dropped from the complaint because the defendants are mis-joined. The plaintiff's claim against each of the defendants did not arise from the same transaction or series of transactions. (Rule 3, sec 6). Each claim therefore is a separate cause of action. (Gacula v Martinez, 88 Phil 142)
Q. What is defendant's recourse against a complaint which fails to include an indispensable party?
A. He should move for an order directing the plaintiff to amend his complaint to include the indispensable party, and if plaintiff fails or refuses to obey this order, or the indispensable party cannot be sued, then defendant should move to dismiss the complaint under Rule 17, sec 3. (See Corez v Avila, 101 Phgil 205 [1957])
V. SUMMONS
Q: Action in RTC- Manila against d to collect a sum of money. D is a Filipino now permanently residing in the United States but comes to the Philippines during the Christmas holidays. How may the summons in this action be served on him? (5%)
A: Only personally, when he is in the Philippines even temporarily only. Extraterritorial service is not permissible since the action is inpersonam (Rule 14, 15) and D is not a Philippine Resident (Id. Sec. 16)
Q: Action in RTC- Manila against d to collect a sum of money. D is a Filipino now permanently residing in the United States but comes to the Philippines during the Christmas holidays. How may the summons in this action be served on him? (5%)
A: Only personally, when he is in the Philippines even temporarily only. Extraterritorial service is not permissible since the action is inpersonam (Rule 14, 15) and D is not a Philippine Resident (Id. Sec. 16)
Service of summons
Q. D borrowed US $10,000 from the Guam Branch of a Philippine bank and executed therefore in Agana, Guam a promissory note. Upon D's default on the note, may the Philippine bank sue him in then Philippines to collect on this note? (1996 Midterm Exam IVb)
A. Yes. D's suability before our courts depends on the latter's ability to acquire jurisdiction over his person or his property. In this case, the bank may file a simple collection case before a Philippine court and have the summons served on D should he be found in the Philippines; but here the filing of the suit should be timed to coincide with the time that D is expected in this country, also the complaint may be dismissed for non-prosecutions if the summons is not served seasonably enough. But the better alternative would be to have the plaintiff file an application for preliminary attachment on the real property of D in the Philippines, because in such case, D's non-residence will be a sufficient and independent ground for the issuance of an attachment (Rule 57, Sec. 1[f]) and the court may then acquire jurisdiction over his person by service of summons by publication (Rule 14, Sec. 17).
VI. PLEADINGS ANSWER
Q. An action on a promissory note by P against D Company, copy of the note being attached to the complaint as an annex. D Company answered by denying liability and alleging that the person who signed the note had no authority to do so, but this answer was not verified. May D Company prove its defense? (5%)
A. No. By failing to make a verified denial of the genuineness and due execution of the note, D Company had admitted that the party whose signature appears thereon had indeed signed the note and that he had authority to sign it. [Imperial Textile Mills Inc. v. CA; 183 SCRA 584 (1990)]
Q. May the trial court extend the period for filing an answer after this period had already expired? (5%)
Q: Suppose that a complaint is dismissed for failure to attach thereto a sworn certification against forum-shopping, can the omission be cured by an amendment of the complaint? (5%)
A: No. (rule 7, Sec. 5, 2nd par.)
Q: When is a cross-claim permissive? (5%)
A: Perhaps never. (See Rule 6, sec. 8; Rule 9, Sec. 2)
Q: P sues D for P300,000.00 in RTC-Manila. Before D could answer, P amends his complaint to allege an alternative cause of action for specific performance. D moves to dismiss the complaint. Ruling? (10%)
A: Motion granted. P can amend the complaint once as a matter of right at any time before answer. The fact that the original complaint did not plead a cause of action within the RTC's jurisdiction is of no moment. While the amendment has the effect of curing this defect, this is okay because no leave of court is sought so that there is no conceptual contradiction as no affirmative action is sought from the court. But while an action for specific performance is within the RTC's jurisdiction since it is not capable of pecuniary estimation, the alternative cause of action for P3000,000.00 puts such an estimate and brings the case within the MTC's jurisdiction because of the amount involved. (See Cruz v. Tan, 87 Phil. 627 [1950])
The complaint
Q. May P properly and correctly file a complaint in the RTC against D to recover P1 Million based on a promissory note and another P1 Million based on tortious interference with contract, and for foreclosure of a real estate mortgage to secure a loan of P5 Million? (5%) [1999 Midterm XII]
A. While causes of action may be joined against a common opposing party whether of the same nature or character or whether they arise out of the same contract or relation or whether they are for sums of money, yet none of the causes of action must be a special civil action or action governed by special rules otherwise there would be a misjoinder of causes of action. Here, the cause of action for mortgage foreclosure is misjoined because it is a special civil action. (Rule 2, Sec. 5)
Q. Can the court award the plaintiff damages prayed for in his complaint to be in an "amount as will be proved at the trial"? (10%) [1996 Midterms II]
A. Generally, no. It is required for purposes of computation of the docketing fees payable, that the complaint specify the amount of damages being prayed for not only in its body but also in its prayer. The court does not acquire jurisdiction over an unspecified claim for damages, except in respect to damages arising after the filing of the complaint or similar pleading the amount of which damages need not be specified but to which the additional filing fee shall be a lien on the judgment. (Original Dev't. & Const. Corp. v CA, 202 SCRA 753).
Q. May lack of jurisdiction over the person be pleaded as an affirmative defense and a preliminary hearing had thereon? (10%) [1996 Midterms VIII]
A. Yes. Any ground for dismissal under Rule 16, except improper venue, may be pleaded as an affirmative defense and a preliminary hearing had thereon. A defendant is allowed to put up his own defenses alternatively or even hypothetically. Defenses and objections not pleaded either in a motion to dismiss or an answer, except for the failure to state a cause of action, are deemed waived. Therefore, the defendant is enjoined to set up, along with his objections to the court's jurisdiction over his person, all other possible defenses. (La Naval Drug Corp. v CA, 236 SCRA 78).
Counterclaim and cross-claim
Q. L sued C to annul a deed of sale of a lot and for L to be declared the owner thereof. Judgment went to C, and this judgment became final. Thereafter, C filed an action against L, A and B for damages for the use and occupancy of the same lot, A and B being L's transferees of the house built on the lot, this house having been transferred by L to A and B even before the filing of the annulment action. L, A and B moved to dismiss C's complaint on the ground that it is barred by the judgment in the first action. Resolve the motion to dismiss. (1994 Midterm Exam IX)
A. Motion to dismiss granted. The scone motion is barred by the "compulsory counterclaim rule" (Rule (, Section 4) because the complaint for damages is necessarily connected with the transaction subject matter of the first action. Had the same been annulled in the first action then C would have no right to collect rents from the occupants of the lot and house, while if the court sustained the validity of the same (as it did) then C would have had such right. The addition of A and B as additional defendants does not detract form the res judicata effect of the judgment in the first case because these parties should have been impleaded by C on his compulsory counterclaim in the first auction. See Carpena v. Manalo, 1 SCAR 1060 (1981) and my annotation in 3 PHILAJUR 588 at 601-602 (1978).
Q. In an action in the RTC by the lessee against the lessor to fix a period for his lease, may the RTC entertain the defendant lessor's counterclaim for the ejectment of plaintiff lessee on the ground of the expiry of the stipulated term in the lease contract? (5%) [1999 Midterm XI]
A. No, this is not a compulsory counterclaim because it is not within the jurisdiction of the RTC as to its nature. (Rule 6, Sec. 7)
Q. Action on a fire policy against an insurance company which issued it. The defendant insurer filed a third-party complaint against a re-insurer which set up in his answer the defense alleged by the defendant insurer that the loss was caused by the willful act of connivance of the plaintiff insured. May the third-party defendant re-insurer counterclaim against the plaintiff? [1999 UP Barops III]
A. Yes, provided that the counterclaim be in respect to the plaintiff's claim against the third-party plaintiff. (Rule 6, sec. 13)
