Silliman University College of Law 241 Remedial Law Drills (Bautista Exams) Bar Ops 2002 Series 20 by:

y: louie and den Via Veritas Vita 1 of 57

RULE 2
1 Question: D bought a parcel of land from P for P1M. D paid P100,000.00 down P50,000.00 in cash, and P50,000.00 by check, and agreed to pay the balance within 6 months. To secure the balance, D mortgaged the parcel of land in favor of P. due to Ds failure to comply with the conditions of the mortgage, P brought an action against D for foreclosure of the mortgage. While this foreclosure action was pending, P sued D for P50,000.00 representing the check D paid to P but on which D stopped payment. D moved to dismiss the P50,000.00 collection action on the ground that it was abated by the foreclosure action. Rule on Ds motion to dismiss. (02 February 2001, , No. V-a) Answer: Motion to dismiss denied. No splitting of a single cause of action. The claim for P50,000.00 was a distinct debt not covered by the mortgage. There are therefore 2 distinct causes of action. See Enriquez v Ramos, 7 SCRA 265, 1963; Rule 2 Section 4. 2 Question: The complaint alleged that defendant on a specified date assaulted the plaintiff by the use of physical force and thereby caused him physical injuries which required hospitalization and medical expenses in a specified amount. If you were the defendant how would you meet the complaint? (23 July 2001, VIII-1) Answer: I would move to dismiss the complaint because it does not state facts sufficient to constitute any cause of action. The complaint merely alleged conclusions and not facts. The plaintiffs allegations do not disclose what occurred, where it occurred, who did what. The relationships between defendant and plaintiff, or any other factual data that might identify the occasion or describe the circumstance of the alleged wrongful conduct of defendant. A statement of the facts constituting a cause of action is not only necessary to enable the opposite party to form an issue, and to inform him of what his adversary intends to prove, but to enable the court to declare the law upon the facts stated. Gillispie v Goodyear Service Stores, 258 NC 487, SE 2nd 2d 762 (1962) 3 Question: 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? (15 August 2000, No. IX-b) Answer: I will move for severance of one cause of action because of misjoinder of the 2 causes of action, one to wit, the unlawful detainer action being a special civil action. Rule 2, Sections 5 (b) and 6. 4 Question: 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? (15 August 2000, No. V-a) Answer: Motion Denied. The claim of P500,000.00 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). 5 Question: Action by P against D in the RTC to annul a deed of sale of a parcel of land on the ground of fraud. D filed an answer containing a specific denial and an affirmative defense of estoppel. After the case had been set for trial but before trial, D moved for leave to file an amended answer whereby he sought to include in his answer the defense of statute of limitations. P opposed the motion for amendment on the ground that it would effect a substantial alteration of Ds defense because his original

Silliman University College of Law 241 Remedial Law Drills (Bautista Exams) Bar Ops 2002 Series 20 by: louie and den Via Veritas Vita 2 of 57 answer denies the allegations of fraud whereas the defense of statute of limitations impliedly admits the truth of these allegations. Rule on the motion for leave to amend. (02 February 2001, No. VII-b; 17 Jan 2002, No II-a) Answer: Motion granted. There is no substantial alteration by Ds defense since his prayer remains the same. At any rate, Section 2 of Rule 8 allows the pleading of 2 or more statements of a defense alternatively or hypothetically. (Castillo v Galvan, 85 SCRA 526 , 1978) 6 Question: Is there a rule which requires a plaintiff to join all related claims in one action? (20 march 2002, No. VIIIb) Answer: None expressly. But such a rule may be derived inferentially from the rule against splitting a single cause of action (Rule 2 section 4) or from res judicata (Rule 39, Section 47(b)), with respect xxxx to any other matter that could have been raised in relation thereto) 7 Question: May P properly and correctly file a complaint in the RTC against D to recover P1M in moral damages based on promissory note and another P1M in exemplary damages on tortuous interference with contract, and for foreclosure of a real estate mortgage to secure a loan of P5M? (05 August 1999, No. V-a) Answer: 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) 8 Question: P, a resident of Manila, files a complaint in the RTC of Quezon City against D, a resident of Baguio City, on the following causes of action: Quieting of title and recovery of possession and ownership over a land located in Quezon City with an assessed value of P100,000.00. Answer: a) Recovery of Possession and ownership of a parcel of land in Cebu City with an assessed value of P50,000.00 b) Rescission of contract with agreed exclusive venue in Manila and executed in Manila; c) Collection of money in the sum of P10,000.00; and d) Unlawful detainer of a building in Tarlac City. 9 Question: May all of the foregoing causes of action be joined by P in one complaint against D? (23 Oct, 1999, No. II-a) Answer: Yes, except for cause of action no. 5 for unlawful detainer which cannot be joined because it is a special civil action which is prohibited to be joined under Sec 5(b) of Rule 2. The other causes of action can be properly joined in one complaint under Sec 5(c) of Rule 2. Cause of action no. 1 is properly laid before the RTC-Quezon City because it is within its jurisdiction and it is the proper venue for the real action. Cause of action no. 2, although it is within the jurisdiction of the MTC and its venue is in Cebu City, may be joined with cause of action no. 1 by virtue of Sec 5(c), Rule 2. Cause of action no. 3 may also be joined with cause of action no. 1 under the same Sec 5(c), Rule 2 because the rule on venue no longer applies when joinder of causes of action is involved. Cause of action no. 4 may be joined with cause of action no. 1 by virtue of Sec

Silliman University College of Law 241 Remedial Law Drills (Bautista Exams) Bar Ops 2002 Series 20 by: louie and den Via Veritas Vita 3 of 57 5(c), Rule 2. Cause of action no.5, although within the jurisdiction of the MTC, may be joined with cause of action no. 1 also because of Sec 5(c), Rule 2. 10 Question: Husband filed a complaint in the RTC against his wife praying for custody of their children and that their support be determined, the complaint alleging that defendant-wife attempted to kill plaintiff-husband by kicking him twice on his genital. After answer, plaintiff was allowed by the trial court to amend his complaint by alleging that defendant attempted to kill him by placing poison on his food and praying for legal separation. Was the amendment properly allowed? (09 January 2002, No X-b) Answer: Yes. There was no evidence that the amendment was made with intent to delay the action or that the cause of action was substantially altered. While the reliefs sought are different as the original complaint prays for legal separation, what determines the nature and character of an action is not the prayer but the essential allegations of facts as set forth in the complaint. There is no substantial alteration of the cause of action because defendant is not required to answer for a liability or legal obligation wholly different from that which was stated in the original complaint. Even granting that the causes of action under the original and amended complaints are different, still the amended complaint should be admitted because such causes of action, as legal separation, custody and support arose from the marital relationship between the parties, and a party is allowed to state in one pleading as many causes of action as may arise out of the same relation between the parties. (Rule 2, Section 5) (Anastacio vs Anastacio, 92 OG 2746, 1992) 11 Question: W filed a complaint in the RTC-Manila against H, her husband, pleading 2 causes of action: one for annulment of a deed of sale in favor of X of certain real properties in Pampanga, and the annulment of a deed of donation inter vivos in favor of Y of another set of real properties in Bulacan, and second, for the separation of their conjugal properties, which include both real and personal acquired during marriage. On Ws motion, X and Y (both Manila residents) were impleaded as indispensable parties defendant and were duly summoned. If you were the counsel for X, what would be your best procedural recourse? (02 February 2001, No. V) Answer: I would move to dismiss the case as against X for improper venue, or move to have X dropped as party defendant. There is a misjoinder of causes of action both as regards venue and the defendants. Under Rule 2, Section 5, joinder of causes of action is subject to the rules on venue and joinder of parties. As regards venue, the first cause of action refers to 2different transactions which affect properties in 2 different provinces; the venue is improperly laid as regards the properties in Pampanga and Bulacan. As regards the parties defendant, the deed of sale sought to be annulled was in favor of X while the deed of donation was in favor of Y, and these 2 defendants do not have a common interest that may be joined in one cause of action. (Mijares v Picclo, 101 Phil 142, 1957) 12 Question: Husband filed a complaint in the RTC against his wife praying for custody of their children and that their support be determined, the complaint alleging that defendant-wife attempted to kill plaintiff-husband by kicking him twice on his genital. After answer, plaintiff was allowed by the trial court to amend his complaint by alleging that defendant attempted to kill him by placing poison on his food and praying for legal separation. Was the amendment properly allowed? (12 August 1996, No. IV) Answer: Yes. There was no evidence that the amendment was with intent to delay the action or that the cause of action was substantially altered. While the reliefs sought are

Silliman University College of Law 241 Remedial Law Drills (Bautista Exams) Bar Ops 2002 Series 20 by: louie and den Via Veritas Vita 4 of 57 different as the original complaint prays for custody and support while the amended complaint prays for legal separation, what determines the nature and character of the action is not the prayer but the essential allegations of fact as set forth in the complaint. There is no substantial alteration of the cause of action because defendant is not required to answer for a liability or legal obligation wholly different from that which was stated in the original complaint. Even granting that he causes of action under the original and amended complaint are different, still the amended complaint should be admitted because such causes of action as legal separation, custody and support arose from the marital relationship between the parties, and a party is allowed to state in one pleading as may causes of action as may arise out of the same relation between the parties. Rule 2, Sec 5. Anastacio v Anastacio, 92 OG 2746 (1992) 13 Question: Action by P against D in the RTC for recovery of a parcel of land. After joinder of the issues but before actual trial, P filed a manifestation that he is no longer interested in prosecution his complaint, provided, however, the defendant foregoes with his counterclaim. D filed a counter-manifestation agreeing to the dismissal of the complaint and his counterclaim. Whereupon the RTC issued an order dismissing plaintiffs complaint and defendants counterclaim without costs. Ps successor -ininterest now sues to recover the same parcel, and Ds successor -in-interests moves to dismiss this new complaint on the ground of res judicata. If you were the judge, would you grant the motion to dismiss? (02 February 2001, No. X-b) Answer: NO. Dismissal of the first case was without prejudice. The dismissal having been at plaintiffs instance and not having specified that it was with prejudice, it is one without prejudice within the meaning of Sec 2, Rule 17. (Vergara v Ocumen, 114 SCRA 446, 1982)

RULE 3
14 Question: 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 Ps motion to drop D. (12 Aug 1996, No. III) Answer: 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 Ps 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. Ps right to possess the car is conditioned on Ds actual default and this default cannot be established in Ds absence. Servicewide Specialists Inc v CA, GR No. 103301, (1995) 15 Question: A taxicab and a calesa collided. The driver of the calesa sued the taxicab company for his injury and won, the court finding that he was free of any contributory negligence. Subsequently, a pedestrian, against whom the calesa had been thrown, sued the taxicab company and the calesa for her injuries. Should the earlier judgment in favor of the calesa driver operate as res judicata on the issue of his lack of negligence. (27 Jan 1998, IX-b) Answer: Arguably not, because the pedestrian, not being a party to the first action, is not entitled to be benefited, as he is not bound, by that judgment.

Silliman University College of Law 241 Remedial Law Drills (Bautista Exams) Bar Ops 2002 Series 20 by: louie and den Via Veritas Vita 5 of 57 16 Question: P, a resident of Manila, files a complaint in the RTC of Quezon City against D, a resident of Baguio City against D and C, a resident of Tarlac City, on the following causes of action; a) Quieting of title and recovery of possession of ownership of a land in Quezon City with an assessed value of P100,000.00 against D. b) Recovery of possession and ownership of a parcel of land in Cebu City with an assessed value of P50,000.00 against defendant C. Is there proper joinder of causes of action? (23 Oct, 1999, No. II-b) Answer: NO, because defendant C is misjoined. There is no question of law and fact common to the two joined defendants in any of the causes of action joined together and therefore there is a misjoinder of parties and consequently also a misjoinder of causes of action. (Rule 2, Sec 5(a) in relation to Rule 3, Sec 6) 17 Question: 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? Answer: I would ask that all but one defendant be dropped from the complaint because the defendants are mis-joined. The plaintiffs claim against each of the defendant 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 vs Martinez, 88 Phil 142) 18 Question: Pedro, claiming to be the owner of a parcel of land, filed a complaint for its recovery against fifty (50) persons who each occupied a distinct portion of the property. Is the jointer of the 50 defendants proper? (17 January 2002, No VI-a)) Answer: Yes. The action arise out of the same transaction or series of transactions and there is a question of law or fact which may arise common to all the defendants. (Section 6, Rule 3. Based on 1967 Bar exams) 19 Question: Four hundred residents of Barrio Ramos initiated a class action suit through Albert, a former mayor of the town, to recover damages sustained due to their exposure to toxic waste and fumes emitted by the cooking gas plant of Top Fuel Gas Corporation located in the town. Is the class suit proper? (09 January 2002, No IV-b) Answer: No. The class suit is not proper. Each plaintiff suffered separate and distinct damages from their exposure to the toxic waste and fumes emitted by the cooking gas plant. Each of them has to prove his or her damages. (Newsweek Inc vs. IAC, 142 SCRA 171, 1986) 20 Question: Plaintiffs, 20 in all, alleging that they are all residents of the city of Iloilo, filed an action against the city to recover amounts representing surcharges it had collected from the customers of moviehouses operated within the City pursuant to a city ordinance which plaintiffs allege is ultra vires, illegal and null and void. Plaintiffs allege further that the suit is one of common and general interest to all the residents of the City of Iloilo all of whom would be impracticable to implead and for which reason the suit is being filed on behalf of all these city residents as a class suit. Is the action a proper class suit? Answer: No. Each of the plaintiff s and each of the residents of the City of Iloilo has an interest exclusively in the amounts allegedly collected from each of them by the City. No one plaintiff has any right to, or any share in the amounts individually claimed by the others, each of them being entitled, if at all, only to the return of what he had personally paid. (Valencia v City of Dumaguete, 5 SCRA 1096, 1962)

Silliman University College of Law 241 Remedial Law Drills (Bautista Exams) Bar Ops 2002 Series 20 by: louie and den Via Veritas Vita 6 of 57

21 Question: B, a resident of Tarlac, sold a quantity of rice to C, a resident of Manila. The contract was strictly on COD basis. B delivered the rice to the carrier owned by D who bound himself to deliver the rice to C. C did not pay. When B made the demand, C claimed that the rice was not delivered to him. D on the other hand claimed that the rice was delivered. If you were B, who are you going to sue? (02 February 2001, No. IXb) Answer: B should sue C and D in the alternative (Rule 3, Section 13).

22 Question: A & B filed a complaint in the RTC against C and D for specific performance of a deed of sale of a parcel of land. After C and D had filed their answer to the complaint, but before trial, the counsel for A and B gave notice to the RTC that B and C had both died. Acting on this manifestation, the RTC issued an order directing A to amend the complaint within 2 weeks from notice to effect the necessary substitution of parties. A having failed to comply with this order, the RTC dismissed the complaint for failure to prosecute on the part of the plaintiffs and for failure to comply with the order for amendment of the complaint. No appeal having been taken from the order of dismissal, it became, in due time, final. Thereafter, A sued D and the heirs of C for the same cause of action pleaded in the first complaint. On d efendants motion, the RTC dismissed the second complaint on the ground that it was barred by the order dismissing the first complaint. Is the order dismissing the second complaint correct? (17 Jan 2002, No. I) Answer: No. When certain of the parties in the first case died and due notice thereof was given to the court, the latter should have ordered, not the amendment of the complaint, but the appearance of the legal representative of the deceased in accordance with the procedure outline in Rule 3, Section 17. Therefore, the imposition on A of a duty to amend his first complaint is void and his failure to comply with the order making such an imposition did not justify the dismissal of the complaint being void, it cannot, therefore, be asserted to bar the subsequent prosecution of the same claim. (Casenas v Morales, 19 SCRA 462, 1967) 23 Question: P sued D to recover a parcel of land. The day after trial was conducted, D transferred the parcel to X. So, on Ds motion, the trial court directed P to amen d his complaint to substitute X for D as defendant. P complied with this order (which was duly served on X) for amendment of his complaint and promptly served a copy of the amended complaint on X. Despite the fact that X did not file any answer or appear in the proceedings, the trial court rendered judgment in the case ordering him to deliver the parcel to P. Evaluate the case ordering him to deliver the parcel to P. Evaluate the trial courts rulings for procedural correctness. (02 February 2001, No. IV) Answer: The trial court acquired no jurisdiction over X. It did not summon X and ask him to answer. X was not an original defendant and had never been summoned. It is not enough to merely serve him with a copy of the order making him a party defendant, together with a copy of the complaint. But amendment of the complaint in view of the transfer pendente lite from D to X was proper under Rule 3, Sec 19. See Fetalino v Sanz, 44 Phil 691, 1923.

RULE 4
24 Question: A, a resident of Dagupan City, secured a favorable judgment in an ejectment case against X, a resident of Quezon City, from the MTC of Manila. The judgment, entered on 15 June 1991, had not as yet been executed. In July 1998, A decided to enforce the judgment of the MTC of Manila. With what court should A instituted the proceeding? (27 January 1998, No. VIII-b)

Silliman University College of Law 241 Remedial Law Drills (Bautista Exams) Bar Ops 2002 Series 20 by: louie and den Via Veritas Vita 7 of 57

Answer: A may institute the proceeding in a Metropolitan Trial Court which has jurisdiction over the area where the real property involved in situated. Section 1 Rule 4. 25 Question: Action for rescission of a chattel mortgage and the promissory notes secured thereby was filed in the RTC-Pagadian where the plaintiff resides. Defendant moved to dismiss on the ground of improper venue by invoking the following stipulation in the promissory notes: We agree that any action to enforce payment of this note may be brought by the holder at his sole option in the proper court of the city of Manila, in the Municipality where the holder has a branch office. Resolve the motion to dismiss. (09 January 2002, No. I-a) Answer: Motion to dismiss denied. The venue stipulation is not restrictive and does not limit the parties only to the places mentioned therein. Besides, the stipulation speaks of an action enforcing payment by the holder. This is not such an action. (See United Financing Corp. v. Gayapa, 86 OG 1132, 1987) 26 Question: Action for rescission of a promissory note was filed in the RTC-QC where the plaintiff resides. Defendant moved to dismiss for improper venue invoking the following stipulation in the promissory note: Actions to enforce payment of this note may be brought by the holder at his option in the proper court of the City of Manila. Resolve the motion to dismiss. (02 February 2001, No. Ia) Answer: Motion to dismiss denied. The venue stipulation is not restrictive and does not limit the parties only to the places mentioned therein. Besides, the stipulation speaks of an action for the enforcement of the note, but this is not such an action. 27 Question: P, a resident of Manila, sued D, also a Manila resident, in the RTCManila praying alternatively for the declaration on nullity of Ds title over a parcel of land situated in Pasay City, or for an order for D to pay him P1M. D moved to dismiss for improper venue. Decide. (23 July 2001, No. X-1) Answer: Dismiss for improper venue. If besides the personal action, the complaint set up a real action, case shall be tried in province where property is located. (Navarro vs Lucero, 100 Phil 146, (1956). Alternative prayer for p1M does not change nature of action. 28 Question: In 1987 P filed an action against D in RTC-Cebu for the foreclosure of a real estate mortgage. The value of the mortgage property not being sufficient to satisfy Ds indebtedness. P obtained also in 1987 a deficiency judgment against D for P500,000.00. In 1996 P, who has transferred his residence to Manila, filed a suit against D in Manila to recover the deficiency sum of P500,000.00. D moves to dismiss this complaint on the ground that the venue was improper laid, the proper venue being Cebu. Resolve the motion to dismiss. (04 Feb 2001, No X) Answer: Motion denied. The action to recover the deficiency judgment is a personal action, not a real action, and may be brought in Manila where P resides. The deficiency judgment could no longer be enforced in the action for foreclosure in which the deficiency was adjudicated, more than 5 years having elapsed since the same was rendered. The present case is an independent action to revive or enforce the deficiency judgment for a sum of money, and is a mere personal action. 29 Question: Is there a rule authorizing change of venue to avoid miscarriage of justice? (04 Feb 2001, No VI-b-3) Answer: 1987 Constitution, Art VIII, Sec 5 (4)

Silliman University College of Law 241 Remedial Law Drills (Bautista Exams) Bar Ops 2002 Series 20 by: louie and den Via Veritas Vita 8 of 57 30 Question: In 1997 P filed an action against D in RTC-Cebu for the foreclosure of a real estate mortgage. The value of the mortgaged property not being sufficient to satisfy Ds indebtedness, P obtained also in 1977 a deficiency judgment against D for P50,000.00. In 1986 P, who has transferred his residence to manila, filed a suit against D in Manila to recover the deficiency sum of P50,000.00. D moves to dismiss this complaint on the ground that the venue was improperly laid, the proper venue being Cebu. Resolve the motion to dismiss. (17 Jan 2002, No III-b) Answer: Motion Denied. The action to recover the deficiency judgment is a personal action, not a real action, and may be brought in Manila where P resides. The deficiency judgment could no longer be enforced in the action for foreclosure in which the deficiency was adjudicated, more than 5 years having elapsed since the same was rendered. The present case is an independent action to revive or enforce the deficiency judgment for a sum of money, and is a mere personal action. 31 Question: P, a resident of Manila, sued D, also a resident of Manila, in the RTCQuezon City to collect P500,000.00 based on a promissory noted. The RTC-QC dismissed the action motu proprio on the ground that the parties, being both residents of Manila, it has no jurisdiction over the case. Is the dismissal correct? (05 August 1999, No. VI-b) Answer: No. The matter of residence is one of venue only and not of jurisdiction. The court cannot motu proprio an action for improper venue, a motion being required for that purpose. Venue touches more upon the convenience of the parties rather than upon the substance or merits of the case; it involves no more and no less that a personal privilege which may be lost by failure to assert it seasonably. (See Guzman vs. Batario, 95 OG pp 3477 (CA), 1994)

RULE 6
32 Question: When is a cross-claim permissive? (15 August 2000, No. V-b) Answer: Perhaps never. See Rule 6, Sec. 8; Rule 9, Sec 2)

33 Question: The MTC dismissed, on defendants motion, a complain t for unlawful detainer grounded on termination of a month-to-month lease, for lack of jurisdiction over the subject matter due to lack of a prior demand to vacate, and awarded in favor of the defendant the amount of P5,000.00 as attorneys fees. Is this MTC decision vulnerable to attach on certiorari? Answer: Yes. Since the MTC had no jurisdiction over the principal action for unlawful detainer, then it had no jurisdiction over the compulsory counterclaim for attorneys fees is in the nature of a compulsory counterclaim, and compulsory counterclaim cannot remain pending adjudication by the court. A compulsory counterclaim is merely auxiliary to the proceeding in the original suit and derives its jurisdictional support from this original suit. Besides, it was defendant himself who caused the dismissal of his counterclaim by moving for the dismissal of the complaint. Intestate Estate of Amado B Dalisay v Marasigan, GR 115088, (6/20/96) 34 Question: P sues D, who moves to dismiss for failure of the complaint to state a cause of action. The motion is granted and the case dismissed, D never having filed an answer. There is no appeal. Then, D sues P on a claim arising out of the same transaction or occurrence as Ps earlier attempted claim. P defends solely on the ground that Ds claim is precluded by Ds failure to interpose it as a counterclaim in the first action. What judgment? (27 January 1998, No VII-b)

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Answer: Judgment for D. Ds action could not be precluded by judgment in the first case, this first case having been dismissed so that a counterclaim could not have possibly been filed therein. A counterclaim is a pleading contained in an answer, and where there is no answer there could not be a counterclaim.

RULE 7
35 Question: May the court adjudge defendant liable to plaintiff for P1M where the specific amount prayed for in the complaint is P500,000 only? (04 Feb 2001, , No VII-a) Answer: Yes. If the facts so warrant and there is a general prayer for such further relief as may be deemed just or equitable. (Rule 7, Sec 2 (c)). Besides, the complaint may be deemed to have been amended to conform to the evidence. (Rule 10, Sec 5). Except where the defendant has been declared in default. Rule 9, Sec 3(d) 36 Question: 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? Answer: NO. Rule 7, Sec 5, 2nd par.

37 Question: 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 lessors counterclaim for the ejectment of plaintiff lessee on the ground of the expiry of the stipulated term in the lease contract? (05 August 1999, No. IV-b) Answer: 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) 38 Question: Is there a rule requiring that a complaint specify the amount of damages being claimed? (04 Feb 2001, No VI-b-1) Answer: BP 129, Sec 33(1)

39 Question: Is there a rule requiring all pleadings to be verified? (04 Feb 2001, No VI-b-2) Answer: Rule on Summary Procedure, Sec 2 (B)

RULE 8
40 Question: P company, a foreign insurance company, sued in the RTC-Manila and alleged that it is duly authorized to do business in the Philippines, but defendant in his answer denied this allegation as to Ps capacity to sue for lack of knowledge or information. What is the effect of defendants denial? (26 Jan 1998, X-a) Answer: None. The denial is ineffective for being a general denial and therefore is inadequate to attack Ps capacity to sue. (1997 Rules, Rule 8, Sec 4, 2nd sentence) 41 Question: How may plaintiff be able to lead the court into conducting an advance hearing on an affirmative defense of the defendant? (27 January 1998, No II)

Silliman University College of Law 241 Remedial Law Drills (Bautista Exams) Bar Ops 2002 Series 20 by: louie and den Via Veritas Vita 10 of 57 Answer: Plaintiff may move to strike out the answer or affirmative defense on the ground that it is a sham, false, or redundant under section 12 of Rule 8. 42 Question: Does dismissal of a complaint on plaintiffs motion carry with it the dismissal of defendants compulsory counterclaim? (15 August 2000, No. II-a) Answer: No. The dismissal should be limited to the complaint. (Rule 17, Sec 2)

43 Question: Where a complaint in the RTC for the recovery of a parcel of land the answer pleaded no more than negative pregnants, what is plaintiffs best procedural recourse? (04 February 2001, No IX-b) Answer: Since negative pregnant amounts to an admission, the answer may be said to tender no issue or to otherwise admit the material allegations of plaintiffs complaint. Therefore, plaintiff should move for judgment on the pleadings. See Galofa v Nee Bon Sing, 22 SCRA 48, (1968) 44 Question: P was killed when a truck operated by D collided with his car. Ps widow sued D and E, the latter being the owner of a beerhouse where P had drunk beer before the accident. The first cause of action is for damages arising from Ds allegedly having negligently driven the truck across the center line, P being free from any contributory negligence. The second cause of action, made alternative to the first, was for damages against e for selling alcoholic beverages to P which rendered him intoxicate. D moved to dismiss the complaint on the theory that the contradictions between the two causes of action were fatal. Rule on the motion? (09 January 2002, No. IX-a) Answer: Motion to dismiss denied. A party may make up two or more statements of his claim alternatively even if these statements are inconsistent. (Rule 8, Sec 2) Each statement stands alone, and an inconsistent statement contained in another allegation cannot e used to contradict. The idea is to enable the pleader who has no knowledge often true facts to be able to recover on whatever set of facts may be proved at the trial. This is the salutary purpose of alternative pleading. After all, P could bring actions against D and E seriatim or, at the same time in separate suits, and so P is entitled to join them in a single action. (Rule 3, Sec 13)

RULE 9
45 Question: What are the remedies of a defendant who has been declared in default? (23 October, 1999, No. I-b) Answer: The remedies are: a. Motion to set aside default order, to be filed at any time after notice of the default order or judgment. (Rule 9, Sec 3 (b)) b. Motion for new trial (Rule 37, Sec 1(a)) c. Appeal from the default judgment d. Rule 65 certiorari

46 Question: Defendant, before answering, moves to dismiss the complaint on the ground of improper venue. This motion was denied. In his answer, may the defendant plead as an affirmative defense failure of the complaint to state a cause of action? (20 march 2002, No VIa) Answer: No. This objection, which was available at the time of the filing of the motion to dismiss, is deemed waived (Rule 9, Sec 1). Moreover, this ground for a motion to

Silliman University College of Law 241 Remedial Law Drills (Bautista Exams) Bar Ops 2002 Series 20 by: louie and den Via Veritas Vita 11 of 57 dismiss cannot be pleaded as an affirmative defense where a motion to dismiss had been filed. (Rule 16, Section 6) 47 Question: P sued D and X surety company in the RTC for the recovery of P1M representing the value of goods which he had allegedly sold on credit to D. The surety company was included as defendant on account of the bond given by it to guarantee Ds faithful compliance with the terms of the sale. Thereafter D sued the surety company to recover the amount of P600,000.00, alleging that the surety took possession of the goods sold to him by P on the understanding that the surety would apply the proceeds of these goods to the payment of Ds obligation to P but that the surety failed to make such payment from the proceeds of the goods despite demands made by D. If you were the counsel for the surety, would you have a ground to move for the dismissal of Ds complaint? (23 October, 1999, No. IX-b; 02 February 2001) Answer: Yes. The transaction sued upon by D arose out of the transaction between P and D sued upon in the first case so that D should have pleaded his cause of action as a crossclaim in the first case. Having failed to do so, Ds cause of action pleaded in the second case is now barred. (Rule 9, Sec 2; See Malinao v Luzon Surety Co, Inc., 10 SCRA 366, 1964) 48 Question: Wife, W, sued her husband, H, for separate maintenance. H filed an answer with a counterclaim for legal separation on the ground of adultery, naming P as co-defendant on this counterclaim. In his answer to the counterclaim, P denied the acts of adultery with which he was charged. Judgment, which became final, went to W and P. thereafter, P sued H for defamation, alleging that he was defamed by the matters set up by H in his counterclaim wherein H falsely and maliciously charged that P had been guilty of adultery with W. H moves to dismiss the defamation complaint on the ground that it is barred by the judgment in the first case. Rule on Hs motion to dismiss. (04 February 2001) Answer: Motion granted. P should have filed a compulsory counterclaim. Rule 9 Section 2 barred the defamation case. 49 Question: P sued A and B to recover a parcel of land. Judgment went for A and B. Then A sued B to recover the same parcel of land. Is the second action barred by res judicata? (27Jan 1998, X-b) Answer: It depends. If As claim against B was already existing the time of the first action, then it was a compulsory cross-claim and is already barred under Rule 9, Sec 2. Otherwise, no, because A and B were not adverse parties on the first action and their relative rights and liabilities as co-defendants inter sese were not there brought on issue. 50 Question: After the complaint and answer were filed, plaintiff moved for judgment on the pleadings on the ground that the answer did not tender an issue or that it otherwise admitted the material allegations of the complaint. The RTC denied this motion over defendants opposition but dismissed the case on the ground that the claim asserted is unenforceable under the Statute of Frauds. Is the dismissal correct? (23 October 1999, No. III-a) Answer: No, there being no motion to dismiss by defendant who only opposed the motion for judgment on the pleadings but did not ask for dismissal of the case. This is not one of the instances under Rule 17 or under Sec 1, Rule 9, where a court may dismiss the case motu proprio. (See Hontiveros vs RTC, Br 25, Iloilo City, GR 125465, 6/29/99) 51 Question: Due to personal injuries suffered in a vehicular collision, P sued D for P300,000.00 in actual damages, P1M in moral damages, P1M in exemplary damages

Silliman University College of Law 241 Remedial Law Drills (Bautista Exams) Bar Ops 2002 Series 20 by: louie and den Via Veritas Vita 12 of 57 and P500,000.00 in attorneys fees. Assuming that D is declared in default, how much can the court properly award P? (05 August 1999, No. V-b) Answer: Nothing, except probably such attorneys fees as the court may find reasonable. Unliquidated damages cannot be awarded against a party in default. (Rule 9, Sec 3(d)) 52 Question: Where the defendant has been declared in default, does the plaintiff still have to present evidence to support his complaint in order for him to obtain judgment thereon? (15 august 2000, No. VII-b) Answer: No need. The court may render judgment granting plaintiff such relief as his pleading may warrant unless in its discretion the court requires him to submit evidence. Rule 9, Sec 3. 53 Question: Where the defendant was declared in default despite the fact that he had not been duly summoned, does he still have to demonstrate a meritorious defense as a condition precedent to setting aside the default order? (30 March 1998, No. X-b) Answer: No more. The default judgment is illegal and motion to set it aside does not have to be accompanied by an affidavit of merit (Ponio v IAC, 133 SCRA 577, 1964). Besides, the theory of the requirement that there would be no purpose served by re-opening the judgment if defendant would simply l_________ on the merits in any event does not apply because when the defendant been notified of the suit, he might have worked out a settlement, or paid the debt, or himself raised enough funds to pay the debt, rather than to suffer its being sold at a sheriffs sale (See Peralta vs. Heights Medical Center, Inc, 485 US 108 S.Ct. 898, 99 L2nd (1998). 54 Question: Can the court award damages against a defaulting defendant even without any evidence? (23 October 1999, No. IV-a) Answer: Yes, on the basis of the complaint and so long as the award is not for unliquidated damages and does not exceed the amount or be different in kind from that prayed for in the complaint. (Rule 9, Sec 3(d)) 55 Question: In what instances may a judgment by default be rendered against defendant? (30 march 1998, VIII-b) Answer: (1) when defendant had been declared in default for failure to answer within the reglementary period (Rule 9, Section 3); (2) when defendant refuses to obey discovery order. (Rule 29, Sec 3 (a))

RULE 10
56 Question: May the court adjudge defendant liable to plaintiff for P1M where the specific amount prayed for in the complaint is P500,000.00 only? (09 January 2002, No. V-a) Answer: Yes, the complaint may be deemed to have been amended to conform to the evidence. Rule 10, Sec 5. Except where the defendant has been declared in default. Rule 9, Sec 3(d) 57 Question: Borrower executed in 1995 a P1M promissory noted in favor of a bank and secured by a real estate mortgage, and in 1996 another promissory note for a 3year term loan for p2M and also secured by another real estate mortgage. On the first

Silliman University College of Law 241 Remedial Law Drills (Bautista Exams) Bar Ops 2002 Series 20 by: louie and den Via Veritas Vita 13 of 57 loan, the bank instituted foreclosure proceedings but borrower filed a complaint for damages and injunction to enjoin the foreclosure. While the case was pending, the bank instituted another foreclosure proceeding for the second real estate mortgage but Borrower filed a motion in his injunction case to admit a supplemental complaint to enjoin the second foreclosure. Should the supplemental complaint be admitted? (25 March 2002, No. VI-b) Answer: No. The second foreclosure suit is a separate cause of action. The proposed supplemental complaint pleads a cause of action related to the cause of action pleaded in the original complaint. A supplemental complaint should only supply deficiencies in aid of an original complaint and contain only causes of action relevant and material to the plaintiffs right and which help or aid the plaintiffs right or defense. Leobrera vs CA, 170 SCRA 711 (1989) 58 Question: P sued D to recover a parcel of land alleging that the deed of sale from Ps father to D bore the forged signature of Ps father. After answer, P moved to amend the complaint to allege that D induced Ps father to sign the deed of sale at a time when he was mentally incapacitated to read and write, being confined in a hospital for acute emphysema. Would you allow the amendment? (20 march 2002, No. VIIIa) Answer: Yes. The amended complaint merely rectifies the erroneous allegation of forgery in the original complaint. D does not change his defense by virtue of the proposed amendment. There is no introduction of a new cause of action originally alleged. In determining whether a different cause of action is introduced by amendment to the complaint, what is to be ascertained is whether the defendant shall be required to answer for a liability or legal obligation wholly different from that which was stated in the original complaint. An amendment will not be considered as stating a new cause of action, if the facts alleged in the amended complaint show substantially the same wrong with respect to the same matter but are more fully and differently stated, or where averments which were implied are made express, or the subjects of the controversy on the liability sought to be enforced remain the same. Manliquez v de Guzman, 97 OG p 7577 (1977) 59 Question: P Corp sued D Co alleging that it was the lowest or best bidder for janitorial services for the year 2000 but that D refused without just cause to award it the contract and prayed that judgment be rendered recognizing it as the lowest bidder and therefore entitled to the award of the contract. But before trial, the year 2000 had lapsed, and so P is considering relief in the form of damages for unrealized profits. Would you then advise P to file an amended complaint or a supplemental complaint? (23 July 2001, No. V-1) Answer: P should amend, and not supplement, its complaint, the amendment to consist in a prayer for new relief damages in lieu of an award of the contract for janitorial services. Actually, this new relief was an alternative remedy to which plaintiff was entitled even at the time of the filing of its original complaint. The amendment of the complaint would not change the theory of the case or its cause of action since what is changed is merely the relief sought. The cause of action remains the same, and that is, that defendant has unjustifiably refused to award to plaintiff the contract for janitorial services. Admission of the amendment could not possibly prejudice defendant who still has the right to file an amended answer and present its evidence in its support. Plaintiff still has an alternative remedy in the way of damages, both reliefs drawing from the basic cause of action rooted in defendants alleged unjustified refusal to award to plaintiff the contract for janitorial services. Superclean Services Corp. vs CA, 258 SCRA 165 (1996)

Silliman University College of Law 241 Remedial Law Drills (Bautista Exams) Bar Ops 2002 Series 20 by: louie and den Via Veritas Vita 14 of 57 60 Question: 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? (15 august 2000, No. VI) Answer: 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 RTCs 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 RTCs jurisdiction since it is not capable of pecuniary estimation, the alternative cause of action for p300,000.00 puts such an estimate and brings the case within the MTCs jurisdiction because of the amount involved. See Cruz v Tan, 87 Phil 627 (1950)

RULE 11
61 Question: Within what period must defendant file his answer to an amended complaint? (02 February 2001, No. IIIa) Answer: It depends on whether defendant had already answered before the complaint is amended. If complaint is amended before defendant has answered, defendant has 15 days from service of copy of the amended complaint. If complaint is amended after defendant has answered, defendant has 10 days from notice of the order admitting the amended complaint or from service of such amended complaint. (Rule 11, Sec 3) 62 Question: Suppose defendant moves to dismiss a complaint but, pending the resolution of this motion to dismiss, plaintiff amends the complaint. Does defendant have to ask for leave of court to file an answer to the amended complaint? (09 January 2002, No. VII-a) Answer: No, the amended complaint supersedes the original complaint and stands as a new complaint which defendant has the right to answer. (Rule 11, Sec 3) 63 Question: What result if the defendant does not answer the amended complaint? (09 January 2002, No. VII-b) Answer: On motion of the plaintiff, defendant may be declared in default for failure to answer. The motion to dismiss, not being an answer, is not deemed repleaded in respect to the amended complaint. Under Section 3 of Rule 11, only an answer (not a motion to dismiss) filed before the amendment shall stand as an answer to the amended complaint. 64 Question: If you were the counsel for the plaintiff, what would be your most effective course of action where all that the defendants answer contains are general denials? (02 February 2001, No. III-b) Answer: A general denial, as it violates the requirement of a specific denial (Rule 8, Section 10), will tantamount to an admission of all the material allegations in the complaint, other than those as to the amount of unliquidated damages (Rule 8, Section 11). So, plaintiffs best recourse is to move for judgment on the pleadings under Rule 34 on the ground that the answer fails to tender an issue or otherwise admits the material allegations to his complaint. (See El Hogar Filipino v Santos Investments Inc. 74 Phil 79, 1943)

Silliman University College of Law 241 Remedial Law Drills (Bautista Exams) Bar Ops 2002 Series 20 by: louie and den Via Veritas Vita 15 of 57

RULE 13
65 Question: Can a notice of lis pendens be cancelled upon the filing of a bond by the party on whose title the notice is annotated? (20 march 2002, No. VIIb) Answer: No. In the first place, the only grounds for cancellation of a notice of lis pendens are those stated on Sec 14 of Rule 13 i.e., after proper showing that the purpose of the annotation is for molesting the adverse party, or that it is not necessary to protect the rights of the party who caused the annotation. In the second place, the ultimate purpose of the annotation to keep the property in litigation within the power of the court and to prevent the defeat of the judgment by its subsequent alienation will be rendered meaningless if a bond were filed in substitution of the notice. Fernandez v CA, 343 SCRA 184 (2000)

RULE 14
66 Question: A sued B for unlawful detainer. Summons was duly served. B filed a motion to dismiss alleging failure to state a cause of action. Before the motion was resolved, A filed an amended complaint alleging additional causes of action. Copy of the amended complaint was served on B. B did not answer, so the court declared him in default upon motion of A. Judgment by default was subsequently rendered. B seeks to annul the judgment contending that the court did not acquire jurisdiction over his person since he was not served with summons on the amended complaint. Decide. (02 Feb 2001, . X-a) Answer: Court had jurisdiction over B. No need for new summons on the amended complaint since B voluntarily appeared by filing a motion to dismiss the original complaint. 67 Question: 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? (15 August 2000, No. VII-a) Answer: Only personally, when he is in the Philippines even temporarily only. Extraterritorial service is not permissible since the action is in personam (Rule 14, Section 15) and D is not a Philippine resident (Rule 14, section 16). 68 Question: Action for a sum of money. Summons (with a copy of the complaint and the writ of preliminary attachment) was served on defendant at his office through his secretary. For failure to answer within the reglementary period and on plaintiffs motion, defendant was declared in default. If you were defendants counsel, what would you do to protect your clients interest. (20 march 2002, No. VIIa) Answer: I would enter a special appearance for defendant to question the courts jurisdiction over defendants person. Summons was not validly served on him. Summons may be served by substituted service. But such substituted service can be effected when prompt, personal service is impossible. Hamilton v Levy, 344, SCRA 821 (2000)

RULE 15
69 Question: P sued D in the RTC-Rizal to recover ownership and possession of a parcel of land situated in manila. D moved to dismiss on the ground that P has no legal capacity to sue. This motion having been denied, D filed another motion in which he

Silliman University College of Law 241 Remedial Law Drills (Bautista Exams) Bar Ops 2002 Series 20 by: louie and den Via Veritas Vita 16 of 57 again asked for the dismissal of the complaint on the ground that the venue was improperly laid, the lad sought to be recovered being situated in Manila. Rule on the second motion to dismiss. (17 January 2002, No VII-a) Answer: Motion denied. Reason: Omnibus Motion Rule (Rule 15, Sec. 8)

RULE 16
70 Question: May lack of jurisdiction over the person be pleaded as an affirmative defense and a preliminary hearing had thereon? (12 August 1996, No. VIII) Answer: Yes. Any ground for dismissal under Rule 16, except improper venue, may be pleaded as an affirmative defense and a preliminary hearing had thereon (Rule 16, Sec 5). A defendant is allowed to put up his own defenses alternatively or even hypothetically(Rule 8, Sec 2). 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 (Rule 9, Sec 2). Therefore, the defendant is enjoined to set up, along with his objections to the courts jurisdiction over his person all other possible defenses. La Naval Drug Corp vs CA, 236 SCRA 78 (1994) 71 Question: How does the defendant raise the issue as to his capacity to be sued? (30 march 1998, No. III-a) Answer: By moving to dismiss on the ground that the court has no jurisdiction over his person. Rule 16, sec 1(a). 72 Question: The complaint simply alleges that D is legally liable to P for damages in a name amount. P moves to dismiss this complaint for failure to state a cause of action. Resolve the motion to dismiss. (27 january 1998, No. VI-b) Answer: Granted. The operative or constitutive facts making up the pleaded cause of action are not stated. The only matters pleaded are conclusions of law. 73 Question: D moved to dismiss Ps complaint on the grounds of lack of jurisdiction over the subject matter and litis pendencia. After hearing the motion, the RTC issued an order dismissing the case for lack of cause of action. Is the dismissal correct? (09 January 2002 No. 1-b) Answer: No. The court cannot dismiss an action on a ground not alleged in the motion to dismiss because such a dismissal would in effect be motu proprio. Besides, the dismissal is not a ground authorized in Sec 1 Rule 16. (Borje vs RTC of Mis Occ, 88 SCRA 576, 1987) 74 Question: Defendant moved to dismiss the complaint for lack of subject-matter jurisdiction. After hearing, the court dismissed the complaint for lack of cause of action. Is the dismissal correct? (04 Feb 2001 No. III-a) Answer: No. The court cannot dismiss an action on a ground not alleged in the motion to dismiss (Rule 16 Section 1) because such a dismissal would in effect be motu proprio (Rule 9, Section 1). Besides, the dismissal is not a ground authorized in Sec 1 Rule 16. (Borje vs RTC of Mis Occ, 88 SCRA 576, 1987) 75 Question: X Bus Company purchased 10 buses from Y Motor Company covered with promissory notes and deeds of chattel mortgage. Then, Y assigned these notes and deeds of chattel mortgages to B Finance Company. Then, when X defaulted on the

Silliman University College of Law 241 Remedial Law Drills (Bautista Exams) Bar Ops 2002 Series 20 by: louie and den Via Veritas Vita 17 of 57 notes, Y, A, and B demanded payment. In view of their conflicting claims against it, X filed in the RTC an interpleader action against Y, A and B praying that the court determine which among them is entitled to payment on the notes. Three days later, B filed an action for replevin with damages against X and Y praying that Y be declared liable to pay Bs claim against X in the event that B is not able to recover thereon against X. defendants move to dismiss the replevin complaint on the ground of the pendency of the interpleader action. Rule on the motion to dismiss. (05 August 1999, No. III-b) Answer: Motion to dismiss granted. There is identity of parties between the interpleader case and the replevin case. In the interpleader case, the plaintiff is X and the defendants are Y, A and B, whereas in the replevin case, the plaintiff is B and the defendants are X and Y. In both cases, therefore, B, X and Y are aprtie4s with the addition of B, but this addition is not detracting from the requisite identity. In both cases, the rights spring from the deeds of assignment executed by Y in favor f A and B, covering the very same debts of X owing to Y. The identity in both cases is such that any judgment that may be rendered in the interpleader case would amount to res judicata in the replevin case; if judgment in the interpleader case is that the assignment to A would prevail over the assignment to B, such judgment would be binding on the replevin case and undercut Bs cause of action in the replevin case. (Sanpiro Insurance corp. vs. IAC, 220 SCRA 527, 1993) 76 Question: Defendant filed a motion to dismiss on the ground that plaintiff has not yet complied with a precondition for filing the action, this precondition being a prior resort to arbitration pursuant to the arbitration clause in the parties contract. Plaintiff opposed the motion to dismiss on the ground that the arbitration clause was not applicable. The court deferred the resolution of the motion to dismiss because the ground relied upon was not indubitable. So, defendant filed his answer and repleaded his ground for the motion to dismiss as an affirmative defense for preliminary hearing. The court denied the motion for preliminary hearing on the ground that defendant had priorly filed a motion to dismiss. Is the denial of the motion to set the affirmative defense for preliminary hearing correct? Answer: 77 Question: Defendant moved to dismiss the complaint on the ground that its allegations are not sufficient to warrant the relief prayed for. Rule on the motion to dismiss. Answer: Motion to dismiss denied. This is not a ground for motion to dismiss, and the prayer is part of the complaint and, save in case of default, is of importance. Camponanes v Bartolome, 38 Phil 8

RULE 17
78 Question: In what cases may the court dismiss an action motu proprio? (25 March 2001, No X-b; 23 July 2001, No. X-2) Answer: Rule 17, Section 3; Rule 9, Section 1.

79 Question: What is defendants recourse against which fails to include an indispensable party? (30 March 1998, No. X-b)

Silliman University College of Law 241 Remedial Law Drills (Bautista Exams) Bar Ops 2002 Series 20 by: louie and den Via Veritas Vita 18 of 57 Answer: 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 the order, or the indispensable party cannot be sued, the defendant should move to dismiss the complaint under Rule 17, Section (See Corex v Avila, 101 Phil 2__, 1957) 80 Question: X filed an action for reconveyance against Y. Y forthwith filed his answer and served it on X. A week later, X filed a motion to withdraw the action since he could not avail of the services of counsel. The court dismissed the complaint based on failure to prosecute. A month after, X instituted the very same action against Y. Y moved to dismiss the case invoking res judicata. He alleged that dismissal of the first case had the effect of an adjudication upon the merits since the courts Order had no condition that it was without prejudice. The court dismissed the subsequent case on the ground of res judicata. (8 Oct 2002, No.VIIIa) Answer: No, because the dismissal of the complaint on motion of X is without prejudice under Sec 2 of Rule 17. The Court erred in dismissing the complaint for failure to prosecute for an unreasonable length of time under Section 3 of Rule 17. 81 Question: Relying on a document of sale, P sued D in the RTC to recover ownership of a parcel of land. For failure of P to amend his complaint conformably to an order of the court, the complaint was dismissed. A month thereafter, P re-filed the same complaint in the RTC, and this complaint is not met with a motion to dismiss by D on the ground of res judicata. Resolve the motion to dismiss. (23 July 2001, IX-1) Answer: Motion to dismiss granted. The dismissal of the first case was with prejudice pursuant to Section 3, Rule 17. Therefore, all requisites for res judicata are present. Enriquez v Boyles, 226 SCRA 666, 3rd Div, 1993. 82 Question: May a court dismiss an action for failure of plaintiffs lawyer to appear at the trial despite due notice? (09 January 2002, No II-a) Answer: No. Sec 3 of Rule 17 does not authorize a dismissal on the ground of absence of counsel. What the court should do is to grant the plaintiff an hour or two to engage the services of a new lawyer. (Dayo v Dayo,, 95 Phil 703, 1987) 83 Question What adverse effect may defendant suffer should he fail, inexcusably, to appear at one trial date despite due notice? (20 march 2002, No. IXb) Answer: Plaintiff may be allowed to adduce his evidence on that date ex-parte.

84 Question: P sued D to recover possession and ownership of a parcel of land, but this action was dismissed (after the case was scheduled several times for trial) for Ps failure to prosecute. After the dismissal order had become final P brought another action against D for quieting of title over the same parcel of land. D moved to dismiss the second action on the ground of res judicata. Rule on the motion. (30 march 1998, No. IIIb) Answer: Motion to dismiss granted. The dismissal had the effect of an adjudication on the merits, the court not indicating otherwise (Rule 17, Sec 3). The judgment in the first case having become final and there being the requisite identity of parties, subject matter and causes of action, res judicata bars the second action. Panado v Cortez, 94 OG 4 (1993) 85 Question: What is defendants effective recourse against a complaint which fails to include an indispensable party? (04 Feb 2001, No. VI-a)

Silliman University College of Law 241 Remedial Law Drills (Bautista Exams) Bar Ops 2002 Series 20 by: louie and den Via Veritas Vita 19 of 57 Answer: 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 Cortez v Avila, 101 Phil 205 (1957) 86 Question: The complaint was dismissed for failure of the plaintiff to appear at the pre-trial despite due notice. May he re-file the complaint? (09 January 2002, No. III-b) Answer: No. The dismissal for non-suit. (Rule 20, Sec 2) is effectively for failure to prosecute and is therefore an adjudication on the merits under Sec 3 of Rule 17. 87 Question: What is defendants most effective recourse against a complaint which fails to include an indispensable procedural party? (09 January 2002, No. V-b) Answer: 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 used, then defendant should move to dismiss the complaint under Rule 17, Sec 3. (See Cortez v Avila, 101 Phil 205, 1957) 88 Question: Do you see any advantage that plaintiff may gain by obtaining a voluntary dismissal of his complaint before the court can act on defendants mo tion to dismiss the same complaint for failure to state a cause of action? (30 march 1998, No. VII-a) Answer: Dismissal for failure to state a cause of action is an adjudication on the merits and has res judicata effect, whereas a voluntary dismissal before answer is not. Besides, the court might award attorneys fee even as it dismisses the case for failure to state a cause of action, and plaintiff can avoid this possibility by having the case dismissed.

RULE 19
89 Question: X Co. filed a claim against Y Insurance Co. for damages to Xs cargo shipped from Japan. Y Insurance rejected the claim for the reason that the cargo were inherently defective. After X Co. rested its case and when Y Insurance Co. was about to present its evidence, Z sought to intervene on the ground that he was a reinsurer of the cargo. Should Z be allowed to intervene? (17 January 2002, No. VI-b) Answer: No. Petitioners right can be fully protected in a separate proceeding. (Rule 19, Sec 1) may assert any defense that the insurer might have made in an action on the policy of original insurance. (Gibson vs Revill, 90 SCRA 219) 90 Question: May a third-party claimant whose property has been levied upon by the sheriff intervene in the action in which the writ pursuant to which the levy was made was issued? (17 January 2002, No. VII-b) Answer: It depends. If levy is on writ of attachment yes; if levy is on writ of execution no, because intervention must be before rendition of judgment. (Rule 19, Section 2)

RULE 21
91 Question: How can you, as a party to a civil action, access document under the control of a non-party? (27 January 1998, No. VI-a)

Silliman University College of Law 241 Remedial Law Drills (Bautista Exams) Bar Ops 2002 Series 20 by: louie and den Via Veritas Vita 20 of 57

Answer:

By subpoena duces tecum.

92 Question: The court issued a subpoena duces tecum ordering the defendant to bring with her whatever document is in her possession relative to this case. Is it possible to quash this subpoena duces tecum and, if so, on what grounds? (30 march 1998, No. IXa) Answer: Yes. On 2 grounds, to wit: 1) it is unreasonable and oppressive as it requires the production of numerous books, documents or things that are not properly described or identified; or, 2) if the person in whose behalf the subpoena is issued fails to advance the reasonable cost of the production thereof. (Rule 21, sec 4; Uy vs Aleonar, 94 OG (1993)

RULE 23
93 Question: What modes, if any, of discovery can be used to secure information held by a non-party? (17 January 20002, No X-a) Answer: Deposition. (Section 1, Rule 23)

94 Question: Is a deposition admissible in evidence even if the deponent is available to testify but does not take the stand? (09 January 2002, No III-a) Answer: Yes. If the deponent is a party then it may be admissible as an admission. (Rule 23, Sec 4(b))

RULE 24
95 Question: In what cases may a dispute as to discovery (its scope or its propriety) be brought to court? (17 January 2002, No X-b) Answer: In at least 2 ways. First, a party confronting a discovery request may seek a protective order under Rule 24, Section 16. Second, on a limiting instruction under Section 18. This party may just refuse to comply so that the party seeking discovery would have to make a motion under Rule 29 compelling discovery.

RULE 29
96 Question: Can judgment by default be rendered against a party who has not been declared in default? (23 July 2001, No IX-2) Answer: Yes. See Rule 29, Sec 3 (c).

97 Question: Is it possible for a judgment by default to be rendered against a defendant who had fuly filed his answer? Answer: Sec 3 (c) Yes, where defendant refuses to comply with a mode of discovery. Rule 29,

Silliman University College of Law 241 Remedial Law Drills (Bautista Exams) Bar Ops 2002 Series 20 by: louie and den Via Veritas Vita 21 of 57

RULE 34 and 35
98 Question: Where in an action by P against D to recover P3M damages for physical injuries allegedly suffered in a vehicular collision, D files an answer which contains nothing but general denials, can P have judgment on the pleadings of summary judgment? (05 August 1999, No. VIII-b) Answer: No. Judgment on the pleadings because of the failure to make a specific denial does not amount to an admission of the averments as to the amount of unliquidated damages (Rule 8, Sec 11) and therefore there is a triable issue or fact (Rule 34 Sec 1). But Summary judgment may be granted if, after notice and hearing, the court should find, on the basis of the pleadings, supporting affidavits, depositions, and admissions on file that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Rule 35, Sec 3) 99 Question: Summary judgment was rendered in favor of plaintiff and against the defendant, the Swiss Club, an unincorporated associatioin, on the ground that it is nonexistent. The answer is a denial upon information and belief of the allegation that defendant is an unincorporated association. Summary judgment proper? (27 January 1998, IX-a) Answer: Probably. The denial amounts to an admission of the truth of the allegation that defendant is an unincoporated association. The rule precludes the use of non-positive denials where matters are presumptively within the defendants knowledge. It is evident that the unincorporated association has possession of its records, an examination of which will disclose its status and thus enable it to answer an allegation that it is such an association. Oliver vs Swiss Club Tell, 222 Cal.52, 35 Cal. Rptr. 324 (1963) 100 Question: Where the defendant fails to answer a request for admission served on him by plaintiff asking for admission of all the material allegations of the complaint, what is plaintiffs best procedural recourse? (05 August 1999, No. I-b) Answer: He should file a motion for summary judgment because the material allegations of the complaint are not disputed. (See Allied Business Development Co., vs. CA, GR. No. 118430, 12/4/9) 101Question: What is plaintiffs best procedural recourse against an answer which pleads no more than negative pregnants? (09 January 2002, No IV-a) Answer: Move for judgment on the pleadings.

RULE 36
102Question: Both plaintiff and defendant were duly served copies of the decision on July 1. Neither party appeals or files a motion for new trial or reconsideration. When does the decision become final? (30 March 1998, No.II-a) Answer: Upon the date of entry of this decision in the book of entries of judgments. (Rule 36, Sec 2) 103Question: Where there is an issue as to defendants liability for exemplary damages, may the court render summary judgment in the case? (25 March 1998, No. I-b)

Silliman University College of Law 241 Remedial Law Drills (Bautista Exams) Bar Ops 2002 Series 20 by: louie and den Via Veritas Vita 22 of 57 Answer: No. Summary judgment is proper only when there is no triable issue of material fact except as to the amount of damages, not as to the liability for damages. 104Question: Give at least one example of a civil case not a special proceeding wherein multiple appeals are allowed. (30march 1998, No.VI-a) Answer: Generally, in cases of several and of separate judgments (Rule 36, secs 4 & 5). Specifically, actions for recovery of property with accounting and for partition. In those cases the judgment for recovery of property is final and appealable without awaiting the accounting; and an order of partition is final and appealable without awaiting the actual partition. Hence, the accounting or the partition can continue pending the appeal and a second appeal may be taken from the judgment on the accounting or the partition. Miranda vs. CA, 71 SCRA 295 (1976); Guzman v CA, 74 SCRA 222 (1976)

RULE 37
105Question: What are the remedies of a defendant who has been declared in default? (23 October, 1999, No. I-b) Answer: The remedies are: e. Motion to set aside default order, to be filed at any time after notice of the default order or judgment. (Rule 9, Sec 3 (b)) f. Motion for new trial (Rule 37, Sec 1(a)) g. Appeal from the default judgment h. Rule 65 certiorari

106Question: What is an affidavit of merits? (17 january 2002, , No. IX-a) Answer: See Rule 9, Section 3(b); Rule 37, Sec 2 and Rule 38, Section 3.

107Question: Is a motion for reconsideration which deals with the same issues and arguments treated in the movants memorandum and already considered and resolved by the trial court in its decision pro forma? (12 aug 1996, No V) Answer: Not necessarily. A motion for reconsideration has to point out specifically the findings and conclusions of the judgment which are not supported by the evidence or which are contrary to law (Rule 37 Sec 2, 3rd par). Since one of the ends of a motion for reconsideration is precisely to convince the court that its ruling is erroneous and improper, contrary to the law or evidence, the movant has to dwell of necessity on the issues passed upon by the court. If movant cannot discuss these issues, he would be confined to filing only motions for reopening and new trial. A reasonable application of the pro forma doctrine relating to motions for reconsideration is called for because this doctrine impacts on the right to appeal, an important and valuable right. Marikina Valley Devt Corp v Flojo, GR No. 11081, (12/8/95) 108Question: On 1 April 1996 a copy of the RTC decision was served on the defendant. On 10 April 1996 defendant filed a motion for new trial on the ground of newly discovered evidence, which motion was granted in an order which set the case for the reception of defendants newly discovered evidence. After the reception of defendants newly discovered evidence, the RTC issued an order affirming in toto its original decision, which order was served on the defendant on 1 July 1996. When is defendants last day to appeal from the RTC decision? (17 january 2002, No. IX-b)

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Answer: 16 July 1996. The order granting the new trial completely and effectively vacated the original decision under the provisions of Section 6 of Rule 37, so that the order served on defendant on 1 July 1996 was in effect a new decision. See Vda de Haberer v Martinez, 62 SCRA 162, 1975.

RULE 38
109Question: Defendant was declared in default by the RTC for failure to file a responsive pleading and thereafter judgment by default was rendered against him. This decision by default was served on defendant on 25 July 1995, and on 01 August 1995 defendant filed a motion to have this decision reconsidered and set aside and for it to be allowed to file its answer on the ground that it had already actually paid the obligation sued upon in the complaint. The RTC denied the motion for reconsideration, and a copy of the denial order was served on defendant on 27 October 1995. On 04 November 1995, defendant filed with the RTC a petition for relief from judgment. Comment on the timeliness and appropriateness of this petition for relief. (12 August 1996, No. VI) Answer: The petition for relief is improper and premature. Defendant had until 05 November 1995 within which to perfect an appeal, and therefore the petition for relief was the wrong remedial b at the time. Oriental Media Inc, vs CA, 250 SCRA 647 (1995) 110Question: X sued Y for breach of contract with damages. After Y filed his answer, the parties amicably settled. The court rendered judgment based on said compromise. Within the period to perfect the appeal. Y filed a motion for new trial under Rule 37 alleging vitiation of his consent due to mistake and prayed that the agreement be set aside. Resolve the motion. (8 Oct 2001, No IIIb) Answer: A judgment by compromise is not appealable. Hence, a motion for new trial is not proper. Y should file a motion to set aside the agreement on the ground of mistake (Reyes v Ugarte, 75 Phil 505), or he could file a petition for relief under Rule 38 of the RC or file a new action to annul the agreement within the prescriptive period. Saminiada v Mata, 92 Phil 426.

RULE 39
111Question: A, a resident of Dagupan City, secured a favorable judgment in an ejectment case against X, a resident of Quezon City, from the MTC of Manila. The judgment, entered on 15 June 1991, had not as yet been executed. In July 1998, A decided to enforce the judgment of the MTC of Manila. What is the procedure to be followed by A in enforcing the judgment? (27 January 1998, No. VIII-a) Answer: A can enforce the judgment in another action reviving the judgment because it can no longer be enforced by motion as the 5-year period with which a judgment may be enforced by motion has already expired. Sec 6, Rule 39; 1997 Bar Exam 112Question: A passenger jeep owned and operated by D collided with a private jeep owned by P who was then driving this jeep. As a result of the collision, P was crushed to death. His widows suit against D for the resulting damages culminated in an RTC judgment in her favor. This judgment became final and executory, but the writ of execution issued therefore was returned unsatisfied. So, D was summoned before the RTC for examination as a judgment debtor and, upon this examination, he declared party liability insurance policy issued by X Company. Whereupon, and on Ps motion, the RTC issued a writ of garnishment, arguing that the writ was void on the ground

Silliman University College of Law 241 Remedial Law Drills (Bautista Exams) Bar Ops 2002 Series 20 by: louie and den Via Veritas Vita 24 of 57 that it was not a party to the case and that jurisdiction over its person had never been acquired by the trial court by service of summons or by any process. Rule on the motion of X company. Answer: Motion denied. In order that the court may validly acquire jurisdiction to bind the person of the garnishee, it is not necessary that summons be served upon him or that he be impleaded as a party to the case. Service upon him of the writ of garnishment is enough. Rule 39, Sec 9(c). Through service of the writ of garnishment, the garnishee becomes a virtual party to, or a forced intervenor in the case. See Perla Cia de Seguros v Remolete, 203 SCRA 487, (1991). 113Question: When, and under what conditions, may a demolition order be issued? (04 February 2001, No. III-b) Answer: Rule 39, Sec 10 (d)

114Question: May an order for the payment of money be enforced by contempt? (04 February 2001, No. IV-a) Answer: Yes. Rule 39, Sec 40; Rule 61, Sec 5.

115Question: P sued D for interest on a note. D alleged fraud in the execution of the note and a release of the obligation to pay interest. After trial, judgment, which in due time became final, was for D. After maturity of the note, P sued F for the notes principal. a) Could D make effective use of the judgment in the first case in the subsequent action for the principal? (02 February 2001, No. VI-b; 23 July 2001, No. III-1) Answer: D could argue estoppel by judgment (Rule 39, Section 47 (c)) and properly argue that the prior judgment, if it made a finding that the note was fraudulently executed, is conclusive on the question of fraud. 116Question: Is the complaint required to specify the amount of damages being claimed by plaintiff? Answer: Yes. BP 129, Sec 33(1)

117Question: Where execution of a money judgment was returned unsatisfied, what other procedural devices are available to the judgment obligee to help him realize on his judgment? (20 march 2002, VIb) Answer: 118Question: X sold a parcel of land to D in 1990 and in 1991 D sold this parcel of land to P. In 1994 X sued D in the RTC to rescind the sale of the land to D and in 1996 judgment was rendered in this action declaring the sale of the land from X to D rescinded and without effect. P now sues D and X for specific performance and for recovery of the possession of the parcel. X moves to dismiss on the ground that the action is already barred by the 1996 judgment in the action of X against D rescinding the sale from X to D. Resolve the motion to dismiss. (17 January 2002, No. VIII-b) Answer: Motion to dismiss denied. Res Judicata does not apply because there is no identity of parties on the 2 actions. P was not a party to the first case nor is P a successor-ininterest of D by title subsequent to the commencement of the first action as required by

Silliman University College of Law 241 Remedial Law Drills (Bautista Exams) Bar Ops 2002 Series 20 by: louie and den Via Veritas Vita 25 of 57 Section 47(b), Rule 39 before the commencement of the first action. (De Leon v De Leon, 98 Phil 589, 1956) 119Question: A microchip supplier sues a computer company for the balance (P50,000.00) due on a shipment of chips which the computer company refuses to pay on its claim that a large percentage of the chips are defective. The computer company chooses not to defend the action because the liability is not large enough to justify the cost of litigation, and a default judgment is entered against it. Subsequently, the computer company sued for P1M by a customer whose computer exploded due to a defective chip. The computer company impleaded the supplier seeking indemnification, but the supplier argues that the judgment in the first suit determined that it had delivered chip produced to specifications. Comment on the merits of the suppliers argument. Answer: Strictly speaking, the judgment in the first suit would preclude litigation as between the supplier and the computer company on the issue of any of the chips delivered being defective, and this because of the rule of estoppel by judgment in Section 27 (c), Rule 39, Rules of Court. However, it is quite arguable that the same weight cannot be given to the judgment in the first case because it was a default judgment and therefore does not have the same quality as a judgment rendered in a contested case, and such judgment even shares the quality of a judgment based on consent or stipulation. 120Question: P filed an action against D for unlawful detainer with the MTC on the ground of non-payment of rent. After D filed his answer, and while the case was still pending, D died. Thereafter, Ds heirs continued, without any formal substitution, with the case and presented their position paper for the defendant. After due hearing, the MTC rendered judgment ordering Ds heirs to vacate the premises. After this judgment became final and executory, D filed an action in the RTC to annul the judgment on the ground that it was rendered without jurisdiction over Ds heirs, there having been no formal substitution of parties. Is the petition to annul the MTC decision tenable? (12 Aug 1996, No. IX) Answer: No. Jurisdiction over the person was acquired by the voluntary appearance of Ds heirs. At any rate, these heirs, having participated in the litigation, are already estopped to question the courts jurisdiction over them. The MTC case was properly continued since the ejectment case is an action which survives, and the judgment in an ejectment case is binding on the parties and their successors-in-interest by little subsequent to the commencement of the action. Rule 39, Section 49 (b). See Vda de Salazar vs CA 250 SCRA 305 (1995) 121Question: In an action on a promissory note, the court gave judgment for the plaintiff with interest compounded annually from the date of execution of the note. Defendant opposed execution of the judgment on the ground that the note did not contain any stipulation for compounding of interest although interest can earn interest from the date it is judicially demanded. Should execution nonetheless issue? (04 Feb 2001, No I-a) Answer: Yes. What defendant actually seeks is a modification of judgment which is no longer possible since the judgment had already become final and executory. Once judgment has become final, even the court which rendered it can no longer alter or modify it except to clerical errors or where it is void ab initio or for lack of jurisdiction. Heirs of Remegio Tan v IAC 163 SCRA 752 (1988) 122Question: What are the only instances in which a probate court may issue a writ of execution? (12 march 2002, No VIIb)

Silliman University College of Law 241 Remedial Law Drills (Bautista Exams) Bar Ops 2002 Series 20 by: louie and den Via Veritas Vita 26 of 57 Answer: a) To satisfy the contributive shares of devisees, legatees and heirs in possession of the decedents assets. (Rule 88, Sec 6) b) To enforce payment of the expenses of partition. (Rule 90, Sec 13), and c) To satisfy the costs when a person is cited for examination in probate proceedings. (Rule 142, Sec 13; See Vda de Valera vs Ofilada, 59 SCRA 96) 123Question: Judgment of the RTC ordering D to pay P P1M. After the judgment became final, a writ of execution therefore was levied on certain real properties of D which upon execution sale, were sold to P for P500,000.00 as the highest bidder. Two weeks later, D sold X for P50,000.00 his right of redemption over these properties sold at execution sale. The following day, P obtained a writ of execution for his P500,000 judgment deficiency and levied this new writ on Ds right of redemption for which he bidded and which x bought for p50,000.00 at the ensuing execution sale. Who is entitled to redeem the auctioned realties? (12 March 2002, No. Xa) Answer: X is entitled to redeem the exclusion of P. P could not validly levy the execution of his deficiency judgment on Ds right of redemption from the sale in execution of the same judgment. Else, the right of redemption which is granted the execution debtor for reason of public policy would be rendered nugatory. (Lichauco vs Olegario, 43 Phil 549, 1992) 124Question: 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 Ds liability. Judgment was rendered ordering D to pay P and X to indemnify D for this payment. X timely appealed that judgment to the CA, but D did not appeal and so P sued out a writ of execution against him after the lapse of the 15day period for D to appeal. Is the writ of execution valid? (05 August 1999, No. IV-a) Answer: 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 ay 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 an appeal of such other party from the judgment against him. (Firestone Tire and Rubber Co of the Phils, Vs Tempongko, 27 SCRA 418 (1969) 125Question: Give at least 3 examples of orders that the trial court may validly issue after its judgment in the civil case has become final and executory. (04 Feb 2001, No VIII-b) Answer: a) Order issuance of a writ of execution b) Determine if property is exempt from execution c) Fix the value of property for purposes of fixing the value of the indemnity bond d) Resolve questions involving redemption e) Examine the judgment debtor and his debtors. (Ong vs Tating, 149 SCRA 265, 1987)

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RULE 40
126Question: How do you appeal a final judgment or order of the MTC? (23 October 1999, No. I-a) Answer: There is only one mode of appeal, to wit, by writ of error under Rule 40 of the 1997 Rules of Civil Procedure, there being no appeal by certiorari allowed by law unlike in the case of judgment or orders of the RTC. (Del poso v Penaco, 167 SCRA 577)

RULE 41
127Question: The RTC dismissed an action brought by P, an alleged co-owmer, for partition of a parcel of land on the ground that the alleged co-ownership does not exist. Assuming that D disagrees with the factual basis of the RTCs decision, where, how and within what time does he appeal? (23 July 2001, No IV-2) Answer: To the CA since there is a factual issue and within 30 days from notice since partition is a case which involves multiple appeals (Rule 41, Sec 2(a) and 3; Municipality of Binan vs Garcia 180 SCRA 576, (1989) 128Question: RTC-Manila Branch 50 rendered a default judgment against defendant in Civil CaseNo. 123456. After this decision became final, RTC-Manila Branch 50 granted plaintiffs motion for execution. In the meanwhile, defendant filed in the RTC Manila, Branch 12, another case - Civil Case 123789 which was a petition for relief for lack of jurisdiction, but defendant appealed the dismissal order to the CA. At the same time defendant moved in Branch 50 to quash the execution writ there issued on the ground that the default judgment was still reviewable under Rule 41, Section 2 on defendants appeal from the order denying his petition for relief. Evaluate - (12 August 1996, No. I) 1. The correctness of Branch 12s dismissal order and of defendants appeal from this order. Answer: (a) Branch 12s dismissal order is correct. Defendant did not comply with Rule 41, Section 2. He did not file his petition for relief in the same case but in another case. Branch 12 cannot take cognizance of the petition; only branch 50 could do so. (b) Defendants appeal to the CA was wrong. It should have been to the SC through a petition for review on certiorari in accordance with the Judiciary Act of 1948 as amended by Rep Act No. 5440 and Sec 25 of the interim rules. 2. The merits of defendants motion in Branch 50 to quash the execution writ. Answer: Defendants motion in Branch 50 to quash the execu tion writ should be denied. Branch 50s final judgment could be executed despite Ds appeal from the order denying his petition for relief. No preliminary injuction had been issued pursuant to Rule 38 Section 5. Rule 41, Section 2, giving the appellate court in an appeal from an order denying a Rule 38 petition the power to review the judgment on the merits, does not give the appellate court the power to reverse or modify such judgment on the merits. Such a review of the judgment on the merits merely enables the appellate court to determine not only the existence of any of the grounds of FAME but also the merits of the petitioners cause of action or defense. Service Specialists, Inc. V Sheriff of Manila, 145 SCRA 139, 1986.

Silliman University College of Law 241 Remedial Law Drills (Bautista Exams) Bar Ops 2002 Series 20 by: louie and den Via Veritas Vita 28 of 57 129Question: In an action by P against D, the RTC judgment in favor of P was served on D on 03 may 1999, and on 13 May 1999 D filed a motion for new trial on the ground of newly discovered evidence. The RTC denied the motion for new trial in an order which was served on D on 01 July 1999. On the following day, i.e., 92 July 1999, D filed his notice of appeal. The RTC denied the appeal for having been filed out of time, and the denial order was served on D on 12 July 1999. D filed on 13 July 1999 in the very same case a petition for relief from judgment on the ground of accident or excusable neglect. Is the petition for relief the proper remedy? (05 August 1999, No. II) Answer: Yes, if the right to appeal is lost through no fault or neglect of D. But mandamus to compel the TC to give due course to the appeal may be the more appropriate remedy because the right to appeal is not really lost, D having an extra day, and therefore up to 02 July 1999 within which to appeal. (Rule 41, Sec 3, 2nd par. In relation to Rule 22, Sec 2) 130Question: Suppose that in the preceding problem, the RTC denies Ds petition for relief, what remedy, if any, is available to D to challenge the order denying the petition for relief? (05 August 1999, No. III-a) Answer: Only a Rule 65 petition for certiorari, since an appeal is not available. (Rule 41, Sec 1 (b)) 131Question: In a suit by P against D in the RTC-QC judgment went against D and was served on him on 1 June 2001. On 4 June 2001 D filed a notice of appeal but on the next day, 5 June 2001, P filed a motion for execution pending appeal. Can the trial court still act on Ps motion for execution? (23 July 2001, No. IV-1) Answer: Yes. The mere filing by D of the notice of appeal did not divest the trial court of jurisdiction over the case since the trial court does not lose such jurisdiction until after the expiration of Ps time to appeal. Rule 41, Sec 9 3rd par. 132Question: In an action for unlawful detainer in the MTC, defendant lessee was ordered to vacate the leased premises and pay monthly rentals of P50,000.00 starting 01 April 1997 until he shall have vacate the premises and surrendered its possession to plaintiff lessor, and the sum of P30,000.00 as attorneys fees. Copy of the decision was served on defendant lessee on 01 March 1999 and, on the next day, 02 March 1999, defendant filed a notice of appeal to the RTC so that on 08 March 1999, the MTC transmitted the records of the case to the RTC. On 17 Marc 1999, plaintiff lessor moved for execution of the decision in his favor, alleging that although defendant had filed a notice of appeal he had not filed a supersedias bond. Defendant opposed the motion, claiming that he was prevented from filing a supersedias bond on time because the records of the ejectment case were forwarded to the RTC without waiting for the expiration of his period to appeal and for the further reason that the MTC did not fix the amount of this bond. Rule on the motion for execution. (05 August 1999, No. VII) Answer: Motion for execution granted. Ds failure to file a supersedeas bond is a ground for the immediate execution of the judgment against him. D should have filed a supersedeas bond before he perfected his appeal, this appeal having been perfected as to him upon his filing of his notice of appeal. (Rule 41, Sec 9)As to the amount of the amount, the MTC did not have to expressly or specifically fix the amount of the supersedeas bond because this is equivalent to the amount of rentals, damages and costs stated in the judgment and this is the rentals of P50,000.00 a month from 01 April 1997 until the date of judgment. (Chua vs. Ca, 286 SCRA 437, 1998)

Silliman University College of Law 241 Remedial Law Drills (Bautista Exams) Bar Ops 2002 Series 20 by: louie and den Via Veritas Vita 29 of 57 133Question: Can the third-party plaintiff appeal from an order dismissing his thirdparty complaint for failure to prosecute? (05 August 1999, No. VIII-a) Answer: Only with the courts permission. (Rule 41, Sec 1(g), Rule 36, Sec 5)

134Question: What is the proper recourse of a party aggrieved by an order for execution pending appeal? (15 August 2000, No. III-a) Answer: par. 2 (f) Rule 65 certiorari because such an order is not appealable. Rule 41, Sec. 1,

135Question: On what grounds may the trial court dismiss an appeal taken from its decision? (15 August 2000, No III-b) Answer: On 2 grounds only, to wit: (1) for having been taken out of time, or (2) for non-payment of the docket or other lawful fees within the reglementary period. (Rule 41, Sec 13 as amended, effective 01 May 2000.

RULE 42
136Question: Ps complaint against D in the MTC was dismissed with damages awarded to D. P appealed this dismissal to the RTC which affirmed in toto the MTC decision. P received the RTC decision on 1 March 2000 and filed his notice of appeal to the CA on 16 March 2000. Was Ps appeal timely and properly perfected? (04 Feb 2001, No. I-b) Answer: No. Ps appeal should have been by petition for review under Rule 42. Rule 42, section 1; Rule 41, Sec 2(b) 137Question: Action by P against A, B and C as solidary debtors on a promissory note for P600,000.00. In their answer, defendants admitted the principal allegations of the complaint except that they insisted that their outstanding account was p100,000.00 only. After trial, the RTC rendered judgment in favor of P as prayed for in his complaint. A appealed to the CA which reversed the RTC decision and dismissed the complaint on the finding that the promissory note had been fully paid. On petition with the SC for review on certiorari, P contends: (1) that defendants having admitted in their answer that they were indebted to P and this answer not having been amended, they are bound by this admission and their introduction of evidence of payment having been duly objected to by P, it should not have been admitted and considered; and (2) that the result of the appeal interposed by A cannot inure to the benefit of B and C who whave not appealed the decision of the trial court. Evaluate the merits of Ps contentions. (23 July 2001, No VI) Answer: 1. Generally, SC does not, on a Rule 45 petition for review on certiorari, review CAs findings of fact as Ps contentions would have it do; its jurisdiction is to review errors of law merely. Amendment of the pleadings is not required to make them conform to the evidence (Rule 10, Sec 5); judgment will be rendered not on the basis of the issues alleged but on those discussed and proved at the trial. See Universal Motors Corp, v CA 205 SCRA 448 (1992)

2.

Silliman University College of Law 241 Remedial Law Drills (Bautista Exams) Bar Ops 2002 Series 20 by: louie and den Via Veritas Vita 30 of 57 3. There is an exception to the rule that a judgment creditor is entitled to execution of a final and executory judgment against a non-appealing party. The exception is this: when the obligation of the other solidary debtors is so dependent on that if their co-solidary debtor, the release of the one who appealed, provided it be not on grounds personal to him, operates as well as to the others who did not appeal. See Universal Motors Corp, v CA 205 SCRA 448 (1992)

RULE 47
138Question: M mortgaged a parcel of land to P to secure a loan and this mortgage was duly registered. Then, X sued M to annul his title to this parcel, and a judgment was rendered in this action nullifying Ms title to the land. M defaulted on his mortgage loan and so P foreclosed the mortgage and successfully bidded for the mortgaged land. Upon expiration of the redemption period, P executed an affidavit of consolidation to enable it to obtain a new title. But the Register of Deeds refused to issue anew title to P because its title had already been cancelled in the annulment action filed by X against M. What would advise P to do to protect his interest in the land which it purchased at foreclosure sale? (12 March 2002, No. Ib) Answer: P should file an action in thet CA under Rule 47 to annul the judgment which annulled this title, possibly impleading X and M. This judgment was issued without jurisdiction because P was an indispensable party to the action for nullification of Ms title, P being the mortgagee thereof. Its right over the mortgaged property was adversely affected by the decision nullifying the title to the property. The absence of an indispensable party renders a court without jurisdiction to render judgment in the case. Neither a Rule 65 certiorari or a Rule 38 petition for relief is available to P because he was not a party to Xs nullification action. (Metropolitan Bank & Trust Co., vs. Alejo, GR 141970, 9/10/01) 139Question: Execution of a money judgment against D was levied upon his property which was then sold at public auction to the highest bidder. But before the judgment was rendered, D was judicially declared insolvent, all civil proceedings pending against him ordered stayed and P appointed as the assignee in insolvency. If you were the counsel for P, what is your best recourse? (25 March 2001, No.V-b) Answer: File an action to annul the judgment in the civil case on the ground of either extrinsic fraud or lack of jurisdiction. This remedy may be availed of even by those who are not parties to the judgment and to annul even judgments that have already been fully executed. Malolos v Dy, 325 SCRA 827 (2000) 140Question: P brought an action in the RTC to annul a judgment of MTC in what was thought to be a mere unlawful detainer action but actually was one for rescission and therefore not capable of pecuniary estimation. Defendant moves to dismiss the action on the ground that plaintiff had not exhausted all the ordinary remedies of new trial, and petition for relief. Rule on the motion to dismiss. (30 march 1998, No. II-b) Answer: Motion to dismiss denied. The requirement of prior resort to all of the ordinary remedies of new trial, an appeal and petition for relief is contained in Rule 47, Section 1 and refers to actions for the annulment in the CA of judgments or final orders of the RTC (1997 Rules of Civil Procedure, Rule 47, Sec 1). But there is no requirement that these ordinary remedies be first exhausted before an action to annul a judgment or final order of an MTC may be filed in the RTC. (Rule 47, Sec 10)

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RULE 50
141Question: In an action for a sum of money, the RTC, finding that the answer failed to tender a genuine issue as to any material fact, and on plaintiffs motion, rendered judgment on the pleadings, and this judgment was in plaintiffs favor. Defendant timely filed a notice of appeal stating that he was appealing the judgment to the CA. Plaintiff, however, moved that the RTC disapprove defendants notice of appeal, the remedy from a judgment on the pleadings being a petition for review on certiorari to the SC since only questions of law are involved. What ruling. (23 July 2001, No VII-2) Answer: Plaintiffs motion denied. Under the present rules, the trial court has no authority to disapprove a notice of appeal. A notice of appeal does not require the approval of the trial court. It is for the CA to decide whether the appeal involves pure questions of law and is therefore misdirected in which case the CA is, under Section 2 of Rule 45, directed to dismiss the case. See Kho vs Camacho, 204 SCRA 150, (1991)

RULE 51
142Question: Can the appellant seek reversal of the trial courts decision upon a ground not raised in the trial court? (27 January 1998, No. III-a) Answer: waived. No. See Rule 51, Section 8. Normally an error not objected to is deemed

RULE 57
143Question: P sued D to recover his share in the profits of their joint venture which D received but allegedly converted to his personal use. On Ps application and after an ex-parte hearing the trial court issued a preliminary attachment upon Ps posting of a bond. D moved to lift the preliminary attachment on the ground that there was no fraud in incurring the obligation and that therefore the writ was improperly issued. Rule on the motion to lift preliminary attachment. (25 March 2001, No. I-b) Answer: Motion denied. When the preliminary attachment is issued on a ground which is at the same time the applicants cause of action, the defendant is not allowed to fil e a motion to dissolve the attachment under Section 13 of Rule 57 by offering to show the falsity of the factual averments in plaintiffs application and affidavits. Else, the hearing on such a motion for dissolution of the writ would be tantamount to a trial on the merits such that the merits of the action would be ventilated at a mere hearing of a motion instead of the regular trial. Therefore, when the writ of attachment is of this nature, the only way it can be dissolved is by a counterbound. (FCY Construction Group, Inc. v CA, 324 SCRA 270, 2000) 144Question: P sued D in the RTC on a claim for P2M and obtained a writ of preliminary attachment on Ds property. The sheriff attached a Mercedes Benz car found in Ds garage. Then, T a brother of D, filed with the sheriff a third-party claim, T swearing in his affidavit of third-party claim that his right to the possession of the Mercedes Benz car is derived from the fact that D purchased this car with funds borrowed from him. What action, if any, should the sheriff take on Ts third-party claim? (17 January VIII-a; 04 Feb 2001, No IX-a) Answer: The sheriff should just ignore Ts third-party complaint. The affidavit is insufficient under Section 14 of Rule 57 to cause the discharge of the attachment because the claimant alleged that he was a mere creditor of the attachment debtor. T does not claim to

Silliman University College of Law 241 Remedial Law Drills (Bautista Exams) Bar Ops 2002 Series 20 by: louie and den Via Veritas Vita 32 of 57 have a title to, or a lien on, the attached property which would entitle him to its possession. See Weadcock v Ofilada, 84 Phil, 1949 145Question: P, a manila resident, sued D, also a Manila resident, in the RTC-Manila to collect P1M on a promissory note which had allegedly become past due. The complaint included an application for a writ of preliminary attachment, P alleging that D fraudulently contracted the obligation and is about to dispose of his properties with intent to defraud his creditors. In due time, D filed the following: (23 July 2001, No II) a. Motion to dismiss for failure to refer the case priorly to barangay conciliation;

Answer: No need for prior barangay conciliation where the complaint seeks a provisional remedy. LGC, Sec 412 (b) (3) b. Opposition to the application for preliminary attachment on the ground that the allegations of fraud and of attempt to fraudulently dispose of his properties are not true.

Answer: The opposition, as it traverses the complaints allegations of Ps cause of action, can only be resolved by advancing the trial on the merits. This being the case, issuance of the attachment writ cannot be withheld. FCY Construction Group, Inc. vs CA, 324 SCRA 270, (2000) 146Question: On 1 July 1996, a writ of preliminary attachment issued by the RTC was levied on defendants real property. Notice of levy was duly annotated on the same date in the appropriate title records. However, on that date there was already annotated on the levied property a real estate mortgage in favor of X Bank, this annotation of mortgage having been made on 10 June 1996. On 3 august 1997, the attached property which had been mortgage to X Bank was extrajudicially foreclosed by the latter and sold to this bank as the highest bidder, which registered the sale on the same date. On 1 September 1997, defendant sold to Z his right to redeem the mortgaged property from the extrajudicial foreclosure sale. Now, what right or interest, if any, does the attaching creditor have in the mortgaged property? (17 Jan 2002, No III-b) Answer: The attaching creditor still has the right to redeem the property within one year from 3 August 1997. This was the right the right or interest which the attachment defendant has in the property at the time of levy of the attachment and, this right/interest being subject to the levy, the attachment defendant could not therefore validly sell it to Z. (Consolidated Bank and Trust Corp vs IAC, GR 73976, 1987)

RULE 58
147Question: Action by P against D to recover a parcel of land plus damages and a prayer for a writ of preliminary injunction enjoining defendant from selling the property during the pendency of the litigation. P and P are residents of, and the litigated property is located in, one and the same barangay. D moved to dismiss on the ground of failure to state a cause of action or prematurity because the matter had not been previously referred for barangay conciliation. Resolved the motion to dismiss. (02 February 2001, No. Ib) Answer: Motion to dismiss denied. Since the complaint prays for a writ of preliminary injunction, it may be instituted directly in court without going through barangay conciliation.

Silliman University College of Law 241 Remedial Law Drills (Bautista Exams) Bar Ops 2002 Series 20 by: louie and den Via Veritas Vita 33 of 57 148Question: Can a temporary restraining order be issued ex parte? (15 August 2000, No. IX- a) Answer: Yes, but effective for 72 hours only and this is to be issued by the executive judge of a multiple-sala court or the presiding judge of a single-sala court and only if the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injure. Rule 58, Sec 5, 2nd par 149Question: P a resident of San Juan, Metro Manila, entered into an agreement with D, resident of Quezon City, respecting a piggery business in Marilao, Bulacan. They quarreled the management and control of the business, and so P sued D in RTCQuezon City which issued a preliminary injunction restraining D, his nominees, and all persons under him from entering the piggery compound in Marilao-Bulacan. D moved to lift the preliminary injunction the ground that it is sought to be enforced beyond territorial jurisdiction of the RTC-Quezon City. Resolve the motion. (30 march 98, No. I-a) Answer: Motion to lift denied. An injunction to restrain acts committed outside territorial of the issuing court is valid where the principal business addresses of the parties and the decisions on the acts to be restrained are located and originated within the courts jurisdiction. Embassy Farms, Inc. vs CA, 188 SCRA (1990)

RULE 63
150Question: May a local bookstore retailer bring an action for declaratory judgment seeking an adjudication that the book Twisted by Jessica Zafra is not obscene within the meaning of Article 201 of the RPC? Answer: Yes. But plaintiff must preliminarily allege that the authorities are threatening to prosecute those who sell the book for violation of Article 201 RPC, and that he believes the book is not obscene. Declaratory judgment is the appropriate remedy for the determination of plaintiffs rights where he wishes to avoid the hazard of seeking action in advance of the determination of such rights. No interference with the criminal process since the question to be resolved in the declaratory judgment action is a question of law. No question of fact is involved; the contents of the book is fixed and immutable. In an obscenity case, the question is intrinsically a question of constitutional law. 151Question: P operates 100 radio broadcasting stations all over the country under a legislative franchise which states that it is subject to amendment or repeal by Congress. Recently, Congress enacted a law regulating the ownership of radio and TV stations. This law declared all existing radio and TV broadcasting franchises as terminated effective 31 December 2001 and prescribed new conditions for the issuance of broadcasting licenses. P filed an action in the RTC for declaratory relief praying that the law be declared unconstitutional in that it deprived it of property without due process of law. Is the petition procedurally viable? (17 January 2002, No. V-a) Answer: No. It does not present any actual case or controversy involving the law sought to be annulled. P does not alleged that it has filed an application for license under the law and that the same is being denied or refused on the basis of the restrictions thereunder. Nor does P allege that it has been penalized for violation under the law. All that P seeks is the nullification of the law and the reinstatement of its rights under its former franchise. Declaratory relief is therefore not available to P. (Allied Broadcasting Corp v Republic, 190 SCRA 792, 1990)

Silliman University College of Law 241 Remedial Law Drills (Bautista Exams) Bar Ops 2002 Series 20 by: louie and den Via Veritas Vita 34 of 57

152Question: What is the period of redemption from a real estate mortgage foreclosure? (15 August 2000, No.X) Answer: It depends. If the foreclosure is judicial, there is only an equity of redemption and this is 90 t 120 days only from entry of judgment (Rule 68, Section 2) or at the latest until the order of confirmation of the sale (Rule 68, Section 3). If foreclosure is extra-judicial, it further depends: on year from registration of the sale (Act no 3135, as amended by Act No. 4118) or, under Section 47 of the General Banking Act of 2000 (effective sometime in June 2000), if the mortgagor is a juridical person and the mortgagee is a bank, the redemption period is 3 months from the foreclosure sale or until the sale is registered whichever is earlier.

RULE 65
153Question: The sheriff, in implementation of a writ of execution issued by a court in an ejectment action, issued and served upon the defendant a Notice to Vacate. Alleging that this Notice to Vacate was issued with grave abuse of discretion, defendant took up this Notice to the RTC on a Rule 65 certiorari. Is the Rule 65 certiorari petition tenable? (20 march 2002, No. IXa) Answer: No. A Rule 65 petition for certiorari is available only against a tribunal, board or office exercising judicial functions (rule 65, section 1). But the issuance by the sheriff of a notice to vacate is a ministerial, not a judicial function. Such notice is issued to implement a writ of execution. Ayes vs Presiding Judge, 97 OG p 4048 (1997) 154Question: What are the procedural rules by which a final judgment in a civil case can be set aside? (30 March 1998, No. X-a) Answer: 1. 2. 3. 4. Rule 38 petition for relief Rule 65 certiorari Direct action to annul Collateral attack

RULE 69
155Question: May judgment be rendered in the alternative? (30 march 1998, No V-b) Answer: Yes, e.g. in a replevin case, the judgment in the alternative for the delivery of the property on for its value in case delivery cannot be made. Rule 69, Sec 8)

RULE 70
156Question: H sold to L under a Deed of Conditional Sale a parcel of land by virtue of which L took possession of the land upon making a down payment. Then, H re-sold the same parcel to B who demanded from L payment of rent. Subsequently, H obtained a judgment against L rescinding the Deed of Conditional Sale. But, in the meanwhile, B sued L in ejectment for non-payment of rent. Both parties in the ejectment case claimed ownership of the land. How should the court resolve the ejectment case? (25 March 2001, No VII-a)

Silliman University College of Law 241 Remedial Law Drills (Bautista Exams) Bar Ops 2002 Series 20 by: louie and den Via Veritas Vita 35 of 57 Answer: Court should adjudged for B as it could not resolve the issue of possession without deciding the question of ownership. But the question of ownership has already definitely been resolved by the judgment rescinding the Deed of Conditional Sale between L and H and B is a mere successor in interest of H. The issue of ownership cannot then be litigated in the ejectment case by virtue of res judicata (estoppel by judgment) under Rule 39, Sec 47(c). Barreto v CA, 324 SCRA 581, 2000. 157Question: In what cases is the issuance of a writ of preliminary mandatory injunction expressly authorized? (04 Feb 2001, No II-b) Answer: Rule 70, Sections 15 and 20.

158Question: Action or ejectment by the lessor against the lessees on the ground of alleged expiration of the lease term. The MTC rendered judgment for the plaintifflessor directing the lessee to vacate the premises and to pay an increased rent from the date of expiration of the lease contract. The lessor appealed to the RTC because it was not satisfied with the increased rental granted by the MTC. In the meantime, since the lessee refused to pay the increased rate, the lessor asked for immediate execution of the MTC judgment pending appeal. The lessee opposed the motion for execution on the ground that the lessor had not filed any supersedeas bond. Rule on the motion for immediate execution. (04 Feb 2001, No. VII-b) Answer: Motion granted. Section 18 of Rule 70 applies even if it is the lessor who appeals in the sense that in such a case, if the lessee wishes to prevent execution pending appeal, he (the lessee) must still file the supersedeas bond and make the deposit of accruing rentals. Reason: By his failure to appeal the lessee does not question the accrued and accruing rentals. Also, under Sec 2 of Rule 39, the lessees continued stay on the premises and acquiescence to the new rates would constitute special reasons for authorizing an execution pending appeal. City of Manila vs CA, 149 SCRA 183(1987) 159Question: The MTC rendered judgment in an unlawful detainer case in plaintiffs favor ordering the defendant to vacate the premises and to pay rentals in arrears. Defendant duly appealed from this judgment to the RTC but upon his failure to deposit the requisite supersedeas bond with the MTC, the MTC issued a writ of execution ordering the execution of the appealed judgment with respect to the restoration of possession. Was the writ of execution validly issued? Answer: No. The MTC has no jurisdiction to issue the execution writ. The appeal has already been perfected. It is the RTC which should issue the writ of execution. Rule 70, Sec 19. 160Question: Action in the MTC for unlawful detainer was decided upon a compromise of the parties. The judgment allowed the defendant-lessee to pay his back rentals in installments, with the provision that in case of failure of defendant to pay any single installment an immediate execution shall issue upon plaintiffs motion. For defendants failure to pay rentals which accrued after the judgment, plaintiff moved for a writ of execution, and this motion was granted by the court which directed defendants ejectment from the premises. Is the writ of execution valid? (23 July 2001, No. VIII-2) Answer: No. It does not conform with the judgment which was for the payment of back rentals only and not of future rentals. Such non-conforming writ is a nullity. And so would the judgment have been a nullity if it was for the payment of a future rentals, a suit for such rentals being dismissable outright for lack of cause of action. Default in the payment of rentals accruing after the judgment should be the subject of a new cause of action to be ventilated in a new and separate complaint. Otherwise, a judgment would be eternal,

Silliman University College of Law 241 Remedial Law Drills (Bautista Exams) Bar Ops 2002 Series 20 by: louie and den Via Veritas Vita 36 of 57 whereas it has a lifetime of 10 years only from its finality. Gamboa Inc v CA, 72 SCRA 131 (1976) 161Question: In action for unlawful detainer tried by the MTC under the Revised Rule on Summary Procedure, judgment was rendered ordering defendant-lessee to vacate the premises. This judgment was served on defendant on 07 June 1992, but on 10 June 1992, defendant appealed to the RTC and filed the requisite supersedeas bond. The RTC affirmed the MTC judgment, and defendant timely filed a petition for review with the CA by way of appeal from this judgment. The day before, however, plaintiff moved for execution of the RTC judgment. Rule on the motion of execution. Answer: Motion for execution granted. The judgment of the RTC is immediately executory. Rule 70, Sec 21. 162Question: Can the MTC award moral and exemplary damages in an unlawful detainer suit? (04 Feb 2001, No. IV-b) Answer: No. The only damages that can be recovered in an unlawful detainer suit are the fair rental value or the reasonable compensation for the use and occupation of the real property. Other damages must be claimed in an ordinary action. Felisilda v Villanueva, 139 SCRA 431 (1985) 163Question: BB files a complaint for ejectment in the MTC on the ground of nonpayment of rentals against JJ. After 2 days, JJ files in the RTC a complaint against BB for specific performance to enforce the option to purchase the parcel of land subject of the ejectment case. What is the effect of JJs action on BBs complaint? (8 oct 2001, No.Vb) Answer: There is no effect. The ejectment case involves possession de facto only. The action to enforce the option to purchase will not suspend the action of ejectment for nonpayment of rentals. Wilmon Auto Supply Corp, v CA, 208 SCRA 108 (1992) 164Question: In an illegal detainer case the MTC ruled in favor of plaintiff-lessor who, not being satisfied with the increase of rentals granted him by the court, appealed praying for further increase thereof. Defendant-lessee did not appeal. (8 oct 2001, No.Xa) 1995 BAR 1. Can plaintiff-lessor, as appellant, move for execution pending appeal? Explain. Answer: Yes, if defendant fails to pay or deposit the amount of rentals adjudged by the court within the reglementary period. City of Manila vs CA, 149 SCRA 143); 2. Can defendant-lessee, as appellee, validly resist the immediate execution of the judgment? Explain. Answer: Yes, as long as he pays or deposits the amount of rentals adjudged.

165Question: Defendant, who was served the MTCs adverse judgment in an ejectment case on 01 June 2000, moved on 03 June 2000 for reconsideration of this adverse decision. The MTCs order denying the motion for reconsideration was served on defendant on 20 June 2000. Then, on 27 June 2000, defendant filed a notice of appeal from the ejectment decision to the RTC. Is the appeal timely filed? (15 Aug 2000, No VIII-a)

Silliman University College of Law 241 Remedial Law Drills (Bautista Exams) Bar Ops 2002 Series 20 by: louie and den Via Veritas Vita 37 of 57 Answer: No. The ejectment decision having presumably been rendered by the MTC under the Revised Rule on Summary Procedure, a motion for reconsideration is a prohibited pleading (1991 Revised Rules on Summary Procedure, Sec 19 (c)). So, the filing of this motion did not suspend or toll the running of the period for finality of the ejectment decision which thus became final on 16 June 2000. 166Question: Does an appeal from a final judgment of the RTC stay the enforcement of this judgment? (15 Aug 2000, No VIII-b) Answer: Yes, unless it is an appeal from a judgment of the RTC in the exercise of its appellate jurisdiction over a civil case governed by the Revised Rule on Summary Procedure. 1991 Revised Rules on Summary Procedure, Sec 21;Rule 70, Sec 21. 167Question: P sold a lot to D under a contract to sell whereby D bound himself to pay a down payment and the subsequent monthly installments on the purchase price, with D taking immediate possession but to be considered a mere lessee before full payment of the purchase price, there being stipulation that in case of default the contract shall be automatically cancelled and all sums paid to be considered as rentals and D to be ejected from the property and to forfeit in favor of P all buildings and improvements constructed thereon. D defaulted on the monthly installments, and so P sued him for unlawful detainer in the MTC. The MTC rendered judgment in favor of P, and D appealed this judgment to the RTC. In the RTC, D moved to dismiss on the ground that the MTC has no jurisdiction over the case but the RTC denied this motion and rendered a decision affirming that of the MTC. D then filed a petition for review with the CA to set aside both the decision of the MTC and the RTC on the ground that the MTC had no jurisdiction over the case. (04 Feb 2001, No I-a) a) How should the CA resolve the petition for review? Answer: The CA should dismiss the petition for lack of jurisdiction. The petition presents purely legal questions, to wit, whether the MTC and the RTC had jurisdiction over the case, and under Sec 17 of the Judiciary Act of 1948 such cases are within the exclusive jurisdiction of the SC. (WALAY KLARO NI?) b.) Did the MTC have jurisdiction over Ps complaint? Answer: The MTC had no jurisdiction over the complaint. The complaint sought not only the ejectment of D but sought as well that the building constructed by him on the lot be declared forfeited in Ps favor. Therefore, the issue raised did not only involve possession of the lot but also the ownership of the building which is real property. An unlawful detainer suit should be limited to the issue of possession only. Ortigas & Co, Ltd Partnership v CA, 106 SCRA 121 (1981) 168Question: A and B inherited from their father, C, a parcel of land in 1985. In 1993, D forcibly entered into and took possession of the property. May A by himself and without including B as his co-plaintiff, bring an action for ejectment against D? (02 February 2001, No IX-a) Answer: Civil Code) Yes. Anyone of the co-owners may bring an action to ejectment. (Art 487,

169Question: Can the MTC award moral and exemplary damages in an unlawful detainer suit? (12 march 2002, No Xb)

Silliman University College of Law 241 Remedial Law Drills (Bautista Exams) Bar Ops 2002 Series 20 by: louie and den Via Veritas Vita 38 of 57 Answer: The only damages that can be recovered in an unlawful detainer suit are the fair rental value or the reasonable compensation for the use and occupation of the real property. Other damages must be claimed in an ordinary action. (Felisilda V Villanueva, 139 SCRA 431, 1985) 170Question: On 01 April 1999, P filed in the MTC an action for forcible entry against D alleging that on 15 March 1999, he purchased this parcel but that on 20 March 1999, he found out that D took possession of this parcel under the pretext that he is the owner thereof and that D refused to surrender possession of the land despite demands. D filed his answer denying the material allegations of the complaint and, by way of special and affirmative defenses, averred that the MTC has no jurisdiction over the subject matter of the action because it is not for forcible entry but an accion publiciana and that the deed of sale under which P claims ownership is a forgery. Does the MTC have jurisdiction over the case? (05 August 1999, No. IX) Answer: NO. For a complaint for forcible entry to be within the jurisdiction of the MTC, it must allege plaintiffs prior physical possession of the prop erty as well as that he was deprived of such possession. But here, P merely alleged that on 20 March 1999, he found out that D took possession of the parcel of land and refused to surrender its possession to him; he did not alleged that he was in prior physical possession. Moreover, Ps pretended right to the possession of the disputed property ultimately rests upon his claim of ownership, a claim based upon a purported contract of sale the genuineness of which is disputed by D, so that the case , in the final analysis, hinges on a question of ownership and is therefore not cognizable by the MTC. (see Rimando vs. Borebor, 95 OG p, 911 (CA) 1994)

RULE 71
171Question: Defendant was ordered by the MTC to produce a certain document. Claiming that the document is privileged, defendant refused to comply with the order. So, after due notice and hearing, the MTC ordered defendant to be jailed until he complies with the order to produce. Alleging that the MTCs grave abuse of discretion and want of jurisdiction, defendant filed with RTC a petition for certiorari seeking to set aside the MTC contempt order directing him to be jailed. Is the certiorari petition tenable? (17 January 2002, No. IV-a) Answer: No. Defendant has available to him the remedy of appeal and this is an adequate remedy because the execution of the judgment is suspended pending the appeal. (Rule 71, Sec 4 in relation to Sec 2)

RULE 74
172Question: May a court approve an extrajudicial partition among co-heirs of a deceased who died intestate and without debts, without the court first requiring the partitioning heirs to put up any bond at all? (12 March 2002, No. VIIIa) Answer: Yes. No need for a bond if only realty is partitioned and no personalty is distributed. (Rule 74, Secs 1 and 3)

Silliman University College of Law 241 Remedial Law Drills (Bautista Exams) Bar Ops 2002 Series 20 by: louie and den Via Veritas Vita 39 of 57

RULE 75
173Question: The probate court dismissed a petition to probate a will and converted the proceedings into intestate proceedings upon its finding that a compulsory heir was disinherited. Did the probate court act correctly? (25 March 2001, No. VII-b) Answer: No. Probate deals solely with the extrinsic validity of the will. Exception: intrinsic validity of the will may be passed upon even before probate if it appears on its face to be intrinsically invalid as where a compulsory heir is preterited. Disinheritance, however, unlike preterition, does not void the entire will but only that portion relating to the share of the disinherited heir. Maninang v CA, 114 SCRA 478 (1982)

RULE 77
174Question: What evidence is necessary for the reprobate of a will which has been probated outside of the Philippines, and how does our court acquire jurisdiction over the reprobate? (23 October 1999, No. V-b) Answer: The evidence necessary for the reprobate or allowance of wills which have been probated outside of the Philippines are as follows: (1) the due execution of the will in accordance with the foreign laws; (2) the testator has his domicile in the foreign country and not in the Philippines; (3) the will has been admitted to probate in such country; (4) the fact that the foreign tribunal is a probate court; and (5) the laws of a foreign country on procedure and allowance of wills. The rule that the court having jurisdiction over the reprobate of a will shall cause notice thereof to be given as in case of an original will presented for allowance (Rule 77, Sec 2) means that with regard to notices, the will probated abroad should be treated as if it were an original will or a will that is presented for probate for the first time. Accordingly, compliance with Sec 3 and 4 of Rule 76, which require publication and notice by mail or personally to the known hers, legatees and devisees of the testator resident in the Philippines and to the executor, if he is not the petitioner, are required. (Vda de Perez vs Tolete, 232 SCRA 723, 1994) 175Question: During the pendency of the intestate proceedings in the RTC, it was ascertained that the deceased had after all left a will. What effect will the production of said will have on the intestacy proceedings, and how may this will be submitted for probate? (23 October 1999, No. VI-a) Answer:

RULE 78
176Question: T died leaving an alleged will naming X as executor. X filed a petition for probate of the will and, on his motion, was appointed as special administrator over the objection of the widow who insisted that she had a preference to the appointment. The widow appealed the probate courts order appointing X as special administrator. Resolve the widows appeal. (25 march 2001, No. IX-b) Answer: Appeal dismissed. In the first place, an order appointing a special administrator lies within the discretion of the probate court and is interlocutory and not

Silliman University College of Law 241 Remedial Law Drills (Bautista Exams) Bar Ops 2002 Series 20 by: louie and den Via Veritas Vita 40 of 57 appealable. In the second place, the preference for the surviving spouse in Rule 78, Sec 6 refers to the appointment of a regular administrator, not to that of a special administrator.

RULE 79
177Question: May O, a nephew and a creditor as well of the testator, oppose the petition for letters testamentary filed by the testator himself during his lifetime? (The will designated an executor) (25 march 2001, No. II-a) Answer: No. He is not an interested person within the meaning of Rule 79 Sec 1 . As a nephew, he is not a compulsory heir who may have been preterited in the testators will. As a creditor, he cannot oppose the appointment of the name executor unless the latter is incompetent, refuses the trust or fails to give a bond. Maloles II v Philipps, 324 SCRA 172, 2000)

RULE 82
178Question: In intestate proceedings of X, deceased, the court appointed Y, his brother, as administrator. Two months later, Z, the only legitimate son of X, petitions the court to appoint him as administrator on the ground that he is Xs only heir. How should the court resolve Zs petition? (23 October 1999, No. VIII-b) Answer: Court should deny Zs petition. There is no ground for removal of Y as an administrator. The fact that Z is the only heir is not one of the grounds provided for by Rule 82. 179Question: What sanctions may the court impose on an executor or administrator who delays the closing up of the estate? (25 March 2001, No. X-a) Answer: The court may refuse and deny him compensation. a) Remove him. Rule 82, Section 2; or b) Damages may be charged against him in his account. Rule 85, Section 5.

RULE 90
180Question: Probate court approved a project of partition whereby a parcel of land included in the estate and in the possession of the administrator was assigned to X, one of the heirs. Another heir, Y, who received the share assigned to him in the partition, claimed title to the parcel assigned to X. However, the probate court directed the administrator to deliver the parcel to X. Y objected to this delivery order and contended that the probate court had no jurisdiction to issue this order but that the administrators remedy is to recover the property in a separate action and not by mere motion in an estate proceeding. Is Ys contention correct?(23 October 1999, No. VII-b) Answer: No. Under Rule 90, Sec 1, the probate court has custody and control of the entire estate, and if the administrator has possession of the property the probate court may order him to deliver its possession to the person entitle thereto. So may the probate court order an heir, who is under its jurisdiction, to deliver estate property in his possession to the rightful distributee.

Silliman University College of Law 241 Remedial Law Drills (Bautista Exams) Bar Ops 2002 Series 20 by: louie and den Via Veritas Vita 41 of 57 Here, Y is estopped to question the partition because he had already received the share assigned to him by this partition. The question of Ys title and possession has been concluded by the partiton. Where property has been included in the partition and there is no allegation that its inclusion was through improper means and without the climaints knowledge, the partition bars any further litigation on the title to this property and operates to b ring the property under control ahnd jurisdiction of the probate court for proper distribution according to its tenor. (Torres v Encarnacion, 89 Phil 678, 1951) 181Question: What are the only instance in which a probate court may issue a writ of execution? (12 march 2002, No VIIb) Answer: d) To satisfy the contributive shares of devisees, legatees and heirs in possession of the decedents assets. (Rule 88, Sec 6) e) To enforce payment of the expenses of partition. (Rule 90, Sec 13), and f) To satisfy the costs when a person is cited for examination in probate proceedings. (Rule 142, Sec 13; See Vda de Valera vs Ofilada, 59 SCRA 96)

RULE 102
182Question: In what cases is habeas corpus available as a means of attacking a final judgment of conviction? (25 March 2002, No. III-a) Answer: Only where the judgment is void for lack of jurisdiction or where one is being restrained in his person as a result of a deprivation of a constitutional right. Feria v CA, 325 SCRA 525, (2000)

RULE 103
183Question: Should you want to have your name changed judicially, what difference does it make whether you proceed under Rule 103 or under Rule 108? (25 March 2002, No. IX-a) Answer: Nothing really substantive, except that the title of a Rule 103 petition must indicate certain jurisdictional facts (See Republic v Aquino, 90 SCRA 171, 1979), and such a petition cannot be heard within 30 days prior to an election nor within 4 months after the last publication of the notice. Rule 103, Sec 3. Otherwise, you may proceed as well under either Rule. See San Roque vs Republic, 23 SCRA 444 (1998) BUT SEE NEW LAW.

RULE 110
184Question: Accused was charged in an information for less serious physical injuries. At the trial, what was proved was serious physical injuries. So, the trial court dismissed the case and ordered the filing of a new information charging serious physical injuries. Is the dismissal order correct? (12 March 2002, No VIa) Answer: No. Court should not have dismissed the case but merely ordered the filing of a new information. Dismissal of the case would place the accused in double jeopardy upon the filing of the new information. (Rule 110, Sec 14 in relation to Rule 120, Sec 4; PP vs de

Silliman University College of Law 241 Remedial Law Drills (Bautista Exams) Bar Ops 2002 Series 20 by: louie and den Via Veritas Vita 42 of 57 los Angeles, 47 Phil 109) Or, court could have convicted the accused of only the offense charged, to wit, less serious physical injuries. (US vs de Guzman, 8 Phil 21)

RULE 114
185Question: D was charged in 12 separate information for child abuse in that he allegedly had sexual intercourse with complainants, all female under 18 years of age, exploited in prostitution and for money. Ds application for bail was granted on the condition that approval of his bail bonds shall be made only after arraignment. D then filed a motion to quash the informations and to suspend his arraignment. The motion to quash was on the ground of multiplicity of offenses charged in that D should have been charged for only one act of child abuse regardless of the number of sexual acts allegedly committed by him and the number of children with whom he had sexual intercourse. The trial court denied the motion to quash, and D took up this denial on certiorari to the Court of Appeals. Was the condition imposed on the grant of bail valid? (25 March 2001, No IV-a) Answer: Bail should be granted before arraignment, otherwise the accused may be precluded from filing a motion to quash. To condition the grant of bail to an accused on his arraignment would be to place him in a position where he has to choose between (1) filing a motion to quash and thus delay his release on bail because until his motion to quash can be resolved, his arraignment cannot be held, and (2) foregoing the filing of a motion to quash so that he can be arraigned at once and thereafter be released on bail. These scenarios undermine the accuseds constitutional right not to be put on trial except upon valid complaint or information and his right to bail.

RULE 116
185Question: At what stages of a criminal proceeding must the accused be personally present? (25 March 2001, No II-b) Answer: 1. At arraignment and plea. (Rule 116, Sec 1(b) 2. During the trial whenever necessary for identification purposes 3. At the promulgation of sentence, unless it is for a light offense. (Rule 120, Sec 67)

RULE 117
186Question: Is the pendency of another charge for the same offense a ground for motion quash? (12 March 2002, No 1a) Answer: No. Under Section 3(i), Rule 117, only double jeopardy, which includes dismissal or other termination of the case without the accuseds express consent, is a ground for quashal. 187Question: W was charged in the RTC with estafa thru falsification of commercial document in that she allegedly forged the signature of her deceased husband on a check and misappropriated the proceeds of his check for her personal benefit to the damage of her co-heirs. W moved to quash the information on the ground that the facts charged do not constitute an offense, being a wife she cannot be guilty of estafa

Silliman University College of Law 241 Remedial Law Drills (Bautista Exams) Bar Ops 2002 Series 20 by: louie and den Via Veritas Vita 43 of 57 committed against her spouse under Article 32 of the RPC. (Note: Falsification of a commercial document by a private individual carries the maximum penalty of 6 years imprisonment.) The trial court denied the motion to quash on the reasoning that resolution of the motion should be on the basis of the allegations of the information alone. Was the motion to quash properly denied? (25 March 2001, No VII-b) Answer: No. Where the statute exempts certain persons, or class of persons, from liability, then the information must show that the person charged does not belong to that class. Since the prosecutor did not traverse the allegation of the relationship between the accused and the person whose signature shed allegedly falsified, this fact may be considered by the court to have been established by admission and therefore may properly be considered in resolving the motion to quash on the ground of insufficiency of the information. Now, since W cannot be properly charged with the crime of estafa, then the only crime which may be charged against her is falsification of commercial document for which the penalty is 6 years imprisonment only and therefore within the jurisdiction of the MTC and not the RTC. Cua vs Pine, 97 OG 1219, (1997) b188Question: BC is charged with illegal possession of firearms under an Information signed by a Provincial Prosecutor. After arraignment but before pre-trial, BC found out that the information as it was the City Prosecutor who has such against him be dismissed on the ground that the Information is defective because the officer signing it lacked the authority to do so. The Provincial Prosecutor opposes the motion on the ground of estoppel as BC did not move to quash the Information before arraignment. If you are the counsel for BC, what is your argument to refute the opposition of the Provincial Prosecutor? (8 Oct 2001, No. I-b) Answer: I would argue that since the Provincial Prosecutor had no authority to file the information, the court did not acquire jurisdiction over the person of the accused and over the subject matter of the offense charged (Cudia v CA, 284 SCRA 173 (1999)). Hence, this ground is not waived if not raised in a motion to quash and could be raised at the pre-trial. (Sec 8, Rule 117) 189Question: Is certiorari the proper remedy against the denial of the motion to quash? (25 March 2001, No IV-b) Answer: Generally, certiorari will not lie from a denial of a motion to quash, but there may be special circumstances clearly demonstrating the inadequacy of an appeal. This is such a case. Whether D is liable for just one crime or whether each act of intercourse constitutes one crime is a question that bears on the presentation of evidence by either party. If there is only one offense of sexual abuse regardless of the number of children involved, it will not matter much to the prosecution whether it is able to present only one of the complainants. The issue then should be decided before the case proceeds to trial. Lavides vs CA, 324 SCRA 321 (2000) 190Question: After proper preliminary investigation by the provincial prosecutor, D was charged in the RTC with bribery under an information which allegedly simply: That as municipal president of the town, in consideration of gifts of money, he permitted opium joints and gambling houses. This is contrary to law. As Ds counsel, on what grounds could you move to quash this information? (12 March 2002, No. VIb) Answer: a) The information does not charge any offense. It does not charge the offense of bribery because it does not allege any connection with what official duty of D he agreed to accept gifts. (see Revised Penal Code, Art 210)

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b) The information does not conform to the prescribed form in that it does not allege that the offense was committed within the jurisdiction of the court and the time of the commission of the offense. Also, the information does not allege the names of the persons who made the gifts and the allegation of these names is necessary to identify the act by which D is to be tried and to enable him to understand what is intended to be charged against him. c) The information charges 2 distinct offenses, to wit, the keeping of an opium joint and the keeping of a gambling house. (US vs DeCastro, 2 Phil 616, 1903)

RULE 122
191Question: X, Y and Z were charged and tried as conspirators in the crime of murder. All 3 w3ere convicted, but only X duly appealed. What effect, if an y, does Xs appeal have on Y and Z? (12 March 2002, No Vb) Answer: The perfection and pendency of Xs appeal does not stay the execution of the judgment as to Y and Z (Rule 122, Section 11 (c)). However, in the event that the appellate court should reverse the judgment of conviction or, say, lessen the liability of X or find that the crime committed was not grave as murder, then this reversal or modification which is favorable to Y and Z should apply to them as well since they were convicted as Xs co conspirators. (Rule 122, Section 11(a)) 192Question: If the accused is meted the penalty of reclusion perpetua by the RTC, what should he do to have his case reviewed by the proper appellate court? (8 Oct 2002, No. Ixa) Answer: If the accused is meted the penalty of reclusion perpetua by the RTC, he should file a notice of appeal to the SC which has exclusive appellate jurisdiction. (Sec 5, Art VIII, Constitution; Sec 3(c) of Rule 122)

RULE 124
193Question: If the penalty of reclusion temporal is increased on appeal by the CA to reclusion perpetua, what should the accused do to have his case reviewed by the SC? (08 oct 2002,No. IX a) Answer: The accused need not do anything because the CA should render judgment imposing the penalty of reclusion perpetua, refrain from entering judgment and certify the case to the SC for review (Sec 13 of Rule 124; people v Daniel, 86 SCRA 511). If the CA does not certify the case to the SC for review, the accused should invite the attention of the CA to its duty to do so. (1992 BAR)

RULE 130
194Question: A and B entered into a complete written contract. A sued B on the contract, and B set up in defense that the contract was obtained from him by false

Silliman University College of Law 241 Remedial Law Drills (Bautista Exams) Bar Ops 2002 Series 20 by: louie and den Via Veritas Vita 45 of 57 representations. A objects to the evidence on the ground that it violates the parol evidence rule. Rule on the objection. (25, march 2001, No VI-a) Answer: The objection should be overruled. The parol evidence rule has no operation until a contract has been actually entered into, free from fraud, duress, mistake, etc., in its inception. The question is not as to the terms of the contract, but as to whether a valid contract was ever made. 195Question: P sues D for an automobile accident. The accident was caused by ds car which was driven by X, a chauffer. D wrote to P, and said: My chauffer, X, is a very careful driver. I do not wish a lawsuit, and will pay P20,000.00 to settle the matter. On the trial, the defendant denies that X is his chauffer. P offers Ds letter in evidence. Objection on general grounds, and that the letter was by way of compromise, and therefore inadmissible as an admission. (25, march 2001, No III-b) Answer: Compromise is not admissible as proof of civil or criminal liability. In this case, however, it is proof that X is the chauffer of D being an admission of a relevant fact and not merely a hypothetical statement for the purpose of compromise. It should therefore be admitted in evidence. (Rule 130, Sec 27) 196Question: D is charged with possession of cocaine, which the prosecution asserts was contained in a snowy paperweight on Ds desk. The prosecutor offers as evidence a lab report stating, the snow in the subject paperweight is 95% pure cocaine hydrochloride. Is the lab report admissible over a proper and timely objection? (12 March 2002, No IIb) Answer: No. It is hearsay. The lab report is an out-of-court statement being offered to prove that the snow is cocaine. But it may be admissible as an official report. (Rule 130, Sec 44) 197Question: In a prosecution for murder, after the accused presented his evidence of good character, the prosecution offered the following: (25 March 2001, No I-a) 1. Defendants reputation for truth and veracity was bad. 2. His reputation for peace and quiet was bad. 3. Evidence of several violent assaults committed on several different persons. All the evidence is admitted over objection. What ruling? Answer: If the defendant did no take the witness stand, his reputation for truth and veracity is not in question, so evidence of that reputation is immaterial. If he had taken the stand, then he could be impeached as a witness by evidence of bad reputation for truth and veracity, but not for peace and quiet. If, however, he had offered evidence in his own behalf of good reputation for peace and quiet, then the state might show his bad reputation in those respects. The state could not, however, show such bad reputation by specific acts of misconduct. (see Rule 130, sec 51) The evidence of several prior violent assaults committed on several different persons may be admitted as proof of habit. (Rule 130, sec 34) 198Question: P vs D, to foreclose a mortgage. P is administrator of estate of X. he offers in evidence a pocket memorandum book, in which X had entered: March 1, 1926, received P500 interest from D. Objection hearsay. Ruling? (25 march 2001, No Va) Answer: Objection would probably be overruled. As an exception to the hearsay rule, the declaration of a decedent against his pecuniary or proprietary interest is admissible.

Silliman University College of Law 241 Remedial Law Drills (Bautista Exams) Bar Ops 2002 Series 20 by: louie and den Via Veritas Vita 46 of 57 Here it is true the effect is to establish a claim in his favor, but the entry itself shows a credit to another, and is therefore against interest. Rule 130, Sec 38. 200Question: D is charged with homicide, having allegedly killed X in a fight. D admits killing X by claims that he did so in self-defense after X attacked him. At the trial, D presented the testimony of several witnesses who stated that X had been the aggressor in the fight. No proof as to Xs reputation for violence was introduced. May the prosecution, on rebuttal offer the testimony of a witness who will testify that X has a good reputation in the community as a non-violent man? (25 march 2001, No VIII-a) Answer: Yes. The good character of the offended party in a criminal case may be proved if it tends to establish in any reasonable degree the probability or improbability of the offense charged. Rule 130, Section 51 (a) (3).

IMPORTANT MISCELLANEOUS
JURISDICTION and DOCKET FEES
201Question: Up to what stage of a civil action may the issue of jurisdiction be raised? (09 January 2002, No III-a) Answer: 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. (see Amigo vs CA, 253 SCRA 382, 1996) 202Question: P sued D to compel the latter to execute a deed of sale to him over a parcel of land the purchase price of which had allegedly already been fully paid by P. After his motion to dismiss on the ground of prescription was denied, D filed his answer in due course and thence trial was held. After trial, judgment was rendered against D who then filed a motion to dismiss for lack of jurisdiction on the ground that P did not pay the correct docket fees which should have been assessed on the basis of the value of the property and damages sought and not on the basis of the action as one for specific performance when it was actually for recovery of property. Rule on the motion to dismiss. (15 August 2000, No. IV) Answer: Motion to dismiss denied. In the first place, the action is really for recovery of real property and not for specific performance since Ps primary objective is to regain the ownership and possession of the parcel of land. In the second place, although the payment of the proper docket fees is a jurisdictional requirement, the trial court may allow the plaintiff to pay the same within reasonable time before the expiration of the applicable prescriptive or reglementary period. In any event, the balance between the appropriate docket fees and the amount actually paid by the plaintiff will always be considered a lien on any judgment P may obtain. Thirdly, the motion to dismiss came too late. D is already estopped from raising the issue of jurisdiction after he had actually taken part in the very proceedings which he questions and after the court had rendered a judgment adverse to him. See National Steel Corporation v CA, 302 SCRA 52 (1999) 203Question: A agreed to sell a house and lot to B. Afterwards A refused to comply with the agreement. Whereupon B filed an action for specific performance of the contract to sell. In his complaint B also prayed for damages arising from A s noncompliance in the sum of p15,000.00. B filed his complaint in the RTC of Manila. A objected to the jurisdiction of the RTC, contending that the amount claimed by B is

Silliman University College of Law 241 Remedial Law Drills (Bautista Exams) Bar Ops 2002 Series 20 by: louie and den Via Veritas Vita 47 of 57 within the exclusive jurisdiction of the Metropolitan Trial Court. Is As objection well taken? (02 February 2001, No VIII-a; 17 Jan 2002, No III-a) Answer: No. The action involves a subject which is incapable of pecuniary estimation (specific performance or rescission of contract) although the amount of the demanded damages falls within the jurisdiction of the inferior courts. 204Question: Can the court award the plaintiff damages prayed for in his complaint to be in an amount as will be proved at the trial? (12 August 1996, No II)) Answer: Generally no. It is required for purpose 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 Devt Const Corp vs CA, 202 SCRA 753 (1991) 205Question: Can the court award the plaintiff damages prayed for in his complaint to be in an amount as will be proved at the trial? (09 January 2002, No X-a) Answer: 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 which damages need not be specified but to which the additional filing fee shall be a lien on the judgment. (Original Devt & Const Corp vs CA, 202 SCRA 753, 1991) 206Question: Action by P against D in the RTC for a sum of money sought to be dismissed by D on the ground of prescription. The motion to dismiss was denied and D brought a special civil action fro 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 motion to dismiss the complaint on the ground of lack of jurisdiction, alleging that P had not paid the appropriate docketing fees in the trial court. Rule on the motion to dismiss. (05 August 1999, No. I-a) Answer: Motion to dismiss denied. Although the payment of the proper docket fees is a jurisdiction 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 raise 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 courts jurisdiction because the judgment or decision subsequently rendered is adverse to him. (National Steel Corp. vs. CA, GR 123215, 2/2/99)

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ATTACKS
207Question: What are the ways by which a final and executory judgment may be attacked? (05 August 1999, No. VI-a) Answer: a. By petition for relief; b. By direct action to annul and enjoin the enforcement of the judgment where the alleged defect is not apparent on its face or from the recitals contained in the judgment; c. By a special civil action of certiorari; and d. By collateral attack where the challenged judgment is void upon its face or its nullity is apparent from its own recital. (See Filinvest Credit Corp vs. IAC, 207 SCRA 59, 1st Div 1992) 208Question: What arguments, pro and con, may be made in respect to allowing a party to collaterally attack a final judgment for lack of subject matter-consideration? (27 January 1998, No. I) Answer: Pro: 1. A judgment rendered by a court without subject matter jurisdiction is void and a nullity. 2. The lack of subject-matter jurisdiction maybe very clear. 3. The determination as to the jurisdiction may be dependent upon a question of law rather than on a question of fact. 4. The question of jurisdiction was not actually litigated. Allowing the judgment to stand would substantially infringe on the authority of another tribunal. Con: 1. Where the issue of jurisdiction had been raised are litigated in the original action and it had been decided that the court did have power to proceed, then the matter is already res judicata. 2. Every court has jurisdiction to determine whether it has jurisdiction and its decision on this matter is entitled to respect and may not be assailed collaterally. 209Question: A railroad collision injures 50 passengers all of whom bring separate actions against the railroad. After the railroad wins the first 25 suits, a plaintiff wins in suit 26. Should not the doctrine of collateral estoppel be applied to allow plaintiffs 27 through 50 automatically to recover? Answer: No. It would be unfair to the defendant railroad since suit 26 may have been for small or nominal damages only so that the railroad had little incentive to defend vigorously. Besides, the judgment relied upon in suit 26 as a basis for the estoppel may itself be inconsistent with one or more previous judgments in favor or the defendant.

PROBATE
210Question: Is extrajudicial settlement of an estate mandatory or permissive? (23 October 1999, No. IV-b) Answer: The provision on extrajudicial settlement of estates is mandatory in the sense that it may be insisted upon by the heirs, or majority of them, in their opposition to an

Silliman University College of Law 241 Remedial Law Drills (Bautista Exams) Bar Ops 2002 Series 20 by: louie and den Via Veritas Vita 49 of 57 unnecessary administration proceeding, and an administration proceeding is unnecessary if the estate has no debts, or even if there are, the creditors and heirs have come to an agreement as to the payment thereof. (Javier vs Magtibay, 96 Phil 383) 211Question: Has the probate court jurisdiction to determine whether certain properties belong to the conjugal partnership or to the surviving spouse alone? (23 October 1999, No. V-a) Answer: The question of whether or not certain properties belong to the conjugal partnership or to the surviving spouse alone is a matter properly within the jurisdiction of the probate court which necessarily has to liquidate the conjugal partnership in order to determine the estate of the decedent to be distributed among the heirs. (Bernardo vs CA, , 7 SCRA 367, 1963) 212Question: What is the proper remedy of an heir who did not receive his share in the probate proceedings? (12 March 2002, No. IXa) Answer: Demand his share through a proper motion in the same probate proceedings, or for reopening of the probate proceedings if it had already been closed, and not through an independent action, which may reverse a decision or order of the probate court already final and executed and re-shuffle properties long ago distributed or disposed of. (Solivio vs CA, 182 SCRA 119, 1990)

MISPLACED EVIDENCE
213Question: D is knocked unconscious in a barroom brawl. He is rushed to the emergency room of a hospital where he is examined and treated by Dr. X. as Dr. X is examining D, as sachet of shabu falls from Ds pocket. At the trial for possession of shabu, the prosecutor calls Dr. X to testify as to what he saw in the emergency room. D objects on the ground of doctor-patient privilege. How would you rule? (12 March 2002, No IIIb) Answer: Objection overruled. Where the information the doctor receives covers something non-medical, or the facts are those a layperson could observe, they will be considered outside the scope of the privilege. 214Question: A typewritten letter purportedly written by Michaelangelo to Leoanardo da Vinci is offered into evidence. The letter includes the sentence, By the way, in answer to the question in your February 25 letter, I dont think La Giaconda would look good with a mustache. The mysterious smile is plenty. Cant wait to see the finished product. Could the court determine the authenticity of the letter from its faced alone. (12 March 2002, No IVa) Answer: Yes. Under the Reply-Letter doctrine, a letters authorship can be aunthenticated on the grounds that it contains information that is special knowledge to the author and few others. So, here it is most unlikely that the letter was by one other than Michaelangelo, because no one else (or almost no one else) would have known enough to make the reference to the subjects smile. 215Question: D is on trial for murder which allegedly took place after dark on April 1, 2001. Is the time at which the sun set on April 1, 2001 a fact suitable for judicial notice, assuming it is relevant? (12 March 2002, No. IVb) Answer: Yes. Such a fact is one capable of verification through a readily accessible, undoubtedly accurate source an almanac.

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PREJUDICIAL QUESTION?
216Question: X filed an action for annulment of a deed of mortgage on his allegation that the signature purporting to be his in said deed is a forgery. Thereafter, an information was filed against D, the mortgagee, in the RTC for falsification of the same deed of mortgage. On Ds motion, the RTC suspended the criminal case on the ground that it could not proceed with this case until the civil action for annulment had been resolved. Is the suspension of the criminal action correct? (12 March 2002, No. Va) Answer: No. Even though the civil and the criminal cases involve the same question, the civil case does not involve a question prejudicial to the criminal case. If anything, it should be the civil that should be suspended rather that the criminal, to await the result of the latter. (Benitez vs Concepcion, 2 SCRA 178, 1961)

FORECLOSURES AND MORTGAGES

217Question: Mortgagee extrajudicially foreclosed a real estate mortgage, bidded for and purchased the property at the auction sale and obtained a new TCT in his name after the lapse of one year from the registration of the certificate of sale which was issued to him at the foreclosure sale. Mortgagor now bringing an action to annul the extrajudicial sale and to cancel the mortgagees new TCT on the following grounds; (05 August 1999, No. IX) a. That notice of the sale was not posted at the place where the mortgaged property was located; b. That no personal notice of the extrajudicial foreclosure was furnished the mortgagor; and c. That the purchase price was grossly inadequate. Is the plaintiffs complaint well grounded? Answer: No. Under Act No 3135, as amended, which is the law governing extrajudicial foreclosure of real estate mortgages, there is no requirement of personal notice to the mortgagor, and as far as notice is concerned it is enough that it be posted in at least three public places of the municipality or city where the property is situated and it is not required that the notice be posted at the site of the property itself. The supposed inadequacy of the purchase price is immaterial since there is a right to redeem and therefore a lower bide price would make it easier for the property owner to effect the redemption or sell his right to redeem and thus recover his loss. (See Abrina vs. PNB, 95 OG p 4068 (CA) 1995 citing DBP vs. Vda de Moll, 43 SCRA 82, 1972) 218Question: After foreclosing its real estate mortgage and successfully bidding for the mortgage property at the foreclosure sale, the mortgage demanded rentals from the lessee of the property. In the meanwhile, the mortgagor filed an action for unlawful detainer against the lessee. This prompted the lessee to file a complaint for interpleader against the mortgagor and the mortgagee to compel them to interplead as to who between the two of them is rightfully entitled to the rentals on the foreclosed property. In the unlawful detainer action, judgment was rendered ordering the lessee to pay the rentals to the mortgagor. With the unlawful detainer judgment having become final, the lessee moved to dismiss its interpleader action on the ground that it has become moot and academic. Rule on the motion to dismiss (12 March 2002, No IIa) Answer: Motion to dismiss granted. The reason for the interpleader action has ceased when judgment in the unlawful detainer case was rendered directing the lessee to pay the rentals to the mortgagor. While the mortgagee, not being a party to the unlawful detainer case, could not be bound by the judgment therein, the lessee is bound by such decision. With

Silliman University College of Law 241 Remedial Law Drills (Bautista Exams) Bar Ops 2002 Series 20 by: louie and den Via Veritas Vita 51 of 57 the decision in the unlawful detainer case, the issue of conflicting claims between the mortgagor and the mortgagee as far as the lessee is concerned had been resolved. (Rizal Banking Corp vs Metro Container Corp, GR 127913, 9/13/2001)

RES JUDICATA, ESTOPPEL AND LITIS PENDENCIA

219Question: P and D executed a contract whereby P agreed to deliver a specified bulldozer to D to assist the latter in his logging operations. Claiming that the bulldozer delivered to him by P was not that agreed upon, D sued P in RTC-Rizal for the delivery of the bulldozer specified in their contract. While this case was pending, P sued D in RTC-Davao for the purchase price of the bulldozer. Can the RTC-Davao action be properly maintained? (09 January 2002, No VI-a) Answer: No. It is dismissible for litis pendencia i.e., the pendency of the RTC-Rizal case. Ps claim for the purchase prize should have been set up as a compulsory counterclaim in the RTC-Rizal case. (Lamis Ent vs Laganon, 108 SCRA 740, 1981) 220Question: P filed an action against D to quiet title over a parcel of land. In his answer, D defended by claiming that he is rightfully in possession of the property as a co-owner. After trial, the trial court rendered judgment in favor of P and ordering D to surrender possession of the parcel to P. After this judgment became final, D filed an action against P for maintenance of peaceful possession of the same parcel on the ground that he is its lawful lessee. P moved to dismiss the second action on the ground that it is barred by the judgment in the action to quiet title. What ruling? Answer: Motion to dismiss granted. The cause of action in both cases is the same as it relates to the rightful possession of the land. In both cases, the relief prayed for is the same, to wit, the possession of the land although the ground is different upon which the possession is claimed: in the first case, as a lessee. The plea of res judicata applies not only to the point actually adjudicated but also to every point or issue which could have been raised in the former action. Therefore, res judicata bars not only the specific defense pleased in the former action but also concludes the non-existence of another defense which dad not been pleaded therein. D therefore should have raised the matter of his lessee status in the first case as a defense to Ps action to quiet title. (see Valenzuela vs Giganto, 92 OG 814, CA 1992) 221Question: In an action brought by A against B, the promissory note on which the action is based is copied in the complaint. B failed to deny under oath in his answer the genuineness and due execution of the promissory note, but simply alleged in the special defense that his signature thereto was obtained through fraud and that it was issued without any consideration. In the trial of the case, B offered evidence to substantiate his special defense. A objected to the admission of the evidence of B, alleging that as the latter had failed to deny under oath the genuineness and due execution of the promissory note copied in the complaint, he is estopped from controverting it by evidence of fraud and want of consideration. If you were the trial judge, how would you decide the incident? (02 February 2001, No VIII-b) Answer: Objection should be overruled. Want of consideration and fraud are defenses which are not inconsistent with due execution and genuineness. 222Question: P sued D for specific performance of a verbal contract to sell to the former a piece of land at P500,000.00. D, in his answer, denied having entered into such an agreement and set up his affirmative defense as to the unenforceability of the alleged understanding under the Statute of Frauds. On Ds motion, a preliminary hearing was held on his affirmative defense and thereafter the court denied the motion to dismiss, the court ruling that the agreement had been partially performed because of a down

Silliman University College of Law 241 Remedial Law Drills (Bautista Exams) Bar Ops 2002 Series 20 by: louie and den Via Veritas Vita 52 of 57 payment made by D so that the contract was taken out of the scope of the Statute of Frauds. After trial, the court rendered judgment against D and ruled that Ds inaction in respect to the order denying the motion to dismiss had the legal effect of making such order binding and conclusive upon him. Is the ruling correct? (17 Jan 2002, No V-b) Answer: No. The ruling, being an interlocutory order and not a final and executory one, cannot be the basis of res judicata. (Montila vs CA, 161 SCRA 167, 1988)

VITAL DISTINCTIONS
223Question: Distinguish as to relevant particulars the following: (23 July 2001, No. I) 1. Answer: a) If judgment debtor redeems, no further redemption is allowed. b) Redemptioner must also pay any prior lien of purchaser; judgment debtor need not pay this lien if he redeems unless he redeems from a redemptioner. But redemptioner need pay only such prior lien if it is other thatn the judgment under which such purchase was made. Therefore, redemptioner need not pay balance of judgment credit where judgment creditor is the purchaser because the lien for this balance isnot a lien other than the judgment under which the purchase was made. c) Time within which to redeem. d) Proofs required. 2. Subpoena duces tecum vs Rule 27 order for production or inspection of documents or things. Redemption by the judgment debtor vs redemption by a redemptioner.

Answer: b) Subpoena = no need for motion; Rule 27 production = motion required c) Subpoena = no need to show good cause unlike in Rule 27 d) Subpoena may be quashed on 3 grounds (Rule 21 Sec 4); Rule 27 applies only to non-privileged matters which are material and in adverse partys possession or control. e) Subpoena = may be addressed to any person; Rule 27 = may be addressed to a party only. f) Effect of disobedience. 3. Answer: a) Interrogatories to parties Rule 25 = to be delivered directly to adverse party; Deposition on written interrogatories Rule 23 = interrogatories, together with the X, RD, and RX interrogatories, should be delivered to deposition officer. b) Answers given by adverse party to Rule 25 interrogatories can only be used vs his co-parties; Answers to rule 23 interrogatories may be used vs co-parties who had opportunity to serve X-interrogatories. c) Objections = how made Deposition on written interrogatories vs Rule 25 interrogatories.

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Garnishment vs. Attachment. Answer: Attachment = property actually taken into custody; garnishment = property impounded merely Declaratory judgments vs. advisory opinions. Answer: Declaratory judgments are declarative of the rights of the parties to the case and are based on actual controversy. Res judicata, law of the case and stare decisis. Answer: The rule of the law of the case operates only in the particular and single case where the ruling arises and is not carried into other cases as a precedent. In res judicata, the ruling in one case is carried over to another case between the same parties. The ruling adhered to in the particular case under the doctrine of the law of the case need not be followed as a precedent in subsequent litigation between other parties. On the other hand, under the doctrine of stare decisis, once a point of law has been established by the court, that point of law will, generally, be followed by the same court and by all courts of lower rank in subsequent cases where the same legal issue is raised. See Ayala Corporation vs. RosaDiana Realty & Development Cor. Dec. 1, 2000.

LEGAL HERMENEUTICS
224Question: Explain the following terms: (15 August 2001, No. I) a. Work product rule Answer: The rule which immunizes from discovery the notes impression and other work product of the lawyer gathered or obtained in preparation for litigation. b. material data rule Answer: Rule 41, Sec 6 (markings) copies of such pleadings, petitions, motions, and interlocutory orders as are related to the appealed judgment or final order for the proper understanding of the issue involved, together with data sheet c. supersedeas bond Answer: Rule 39, Sec 3; Rule 70, Sec 19 (markings) executed by defendant in favor of plaintiff to pay the rents, damages, and costs accruing from the judgment appealed from. A means to stay of adverse judgment in Forcible entry; unlawful detainer, and executed one an appeal is filed. d. affidavit of merit Answer: Rule 9 Section 3 (c); (petition for relief of order of default) Rule 37 Sec 2 2nd par (motion for new trial) ; Rule 38 Sec 3. (petition for relief from judgment) e. Relator Answer: Rule 66, Sec. 3 (markings) quo warranto person who requests or instigates the filing of a quo warranto petition before the office of the Solicitor General

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MARCH 29, 2001 FINAL CIVIL PROCEDURE EXAM

225 Question: In a petition for relief in the RTC against an RTC money judgment (already final and executory), the RTC issued a preliminary injunction enjoining the execution of the decision. After due hearing, the RTC dismissed the petition for relief, and petitioner appealed the dismissal order to the CA. While the appeal is pending, may the judgment sought to be set aside on the petition for relief be executed? Answer: No. The preliminary injunction has not been dissolved and is still in force. Rule 39, Sec. 4 refers to an injunction as a principal remedy and not to a preliminary injunction issued as an auxiliary remedy which auxiliary remedies are not dissolved unless the trial court expressly says so. For the trial court to have dissolved the preliminary injunction here would have mooted the appeal.(Dimaunahan vs. Arnas, 74 Phil. 455 [1943]) 226 Question: P sued A and B to recover a parcel of land. Judgment went for A and B. Then, A sued B to recover the same parcel. Is this second action barred by res judicata? Answer: It depends. If As claim against B was already existing at the time of the first action and was a compulsory cross-claim in that case, then the second action is barred under Rule 9, Sec. 2. Otherwise, there is no estoppel because A and B were not adverse parties in the first case and their relative rights and liabilities as co-defendants inter sese were not brought in issue. (Valdez vs. Mendoza, 89 Phil. 83 (1951)) 227 Question: T was leasing his apartment from L at P5,000.00 a month under a written contract for one year. One month before the expiration of the lease, L served a demand upon T to vacate the premises upon its expiry because he was going to demolish the building and erect in its place a new building. T refused to vacate. In consequence, Ls building plans were delayed. So, L brought an action for unlawful detainer against T and obtained judgment therein directing T to pay him the P5,000.00 stipulated rental and P500.00 a day for every day of delay as damages until he finally vacates the premises plus P10,000.00 attorneys fees. Is the decision objectionable in any way? Answer: Yes, the award of P500.00 a day for damages cannot properly be made in an unlawful detainer action where the only damages recoverable are those which are caused by the loss of the use and occupation of the property and not such damages as may be recovered only by the plaintiff if he were the owner and he cannot be declared as such in an unlawful detainer action. The award of attorneys fees is proper. See Reyes vs. CA, 38 SCRA 138, 1971 228 Question: Can a party move to set aside a compromise judgment? If so, how and on what grounds? Answer: Only through a Rule 38 petition for relief and on the ground stated in this Rule. A Rule 37 motion, which presupposes a non-final judgment, is not available because a compromise judgment is immediately final and executory. (Samonte vs. Samonte, 64 SCRA 524, 1975) 229 Question: Action for breach of contract by P against D in the RTC. On Ds motion, the initial trial was postponed five (5) times. On the sixth resetting of the case for trial, neither defendant nor his lawyer appeared through a messenger of defendants lawyer filed then and there a motion for postponement by Ds lawyer on the ground that he has another hearing on the same date and time in an out-of-town court. The court denied the motion for postponement, and allowed P to present his

Silliman University College of Law 241 Remedial Law Drills (Bautista Exams) Bar Ops 2002 Series 20 by: louie and den Via Veritas Vita 55 of 57 evidence ex-parte and considered D to have waived his right to present evidence in his behalf. Thereafter the court considered the case submitted for decision. About two months later, the court rendered a decision in favor of P and against D. D then filed a petition for certiorari with the Court of Appeals claiming that the RTC had acted with grave abuse of discretion in denying his motion for postponement and declaring him as having waived his right to present evidence. While his petition was pending in the CA, defendant perfected his appeal from the RTCs decision to the CA also. P, now appearing as private respondent on the certiorari petition, moved in the CA for the dismissal of the petition on the ground that D had lost his right to avail of the remedy of certiorari when he perfected an appeal from the RTC decision. Resolve Ps motion to dismiss the certiorari petition. Answer: Motion to dismiss denied. Certiorari is an extraordinary remedy which is available where appeal is not adequate to correct lack or excess of jurisdiction or abuse of discretion because appeal cannot promptly relieve the petitioner from the injurious effects of an invalid order. (De Veyra vs. Santos, Sept. 22, 1977). There is no incompatibility between the remedy of certiorari and the appeal and both may be pursued at the same time. (St. Peter Memorial Park, Inc. vs. Campos, Jr. 63 SCRA 180, 1975) 230 Question: Action for rescission of a chattel mortgage and the promissory notes secured thereby was filed in the RTC-Pagadian City, where the plaintiff resides. Defendant moved to dismiss on the ground of improper venue by invoking the following stipulation in the promissory notes. We agree that any action to enforce payment of this note may be brought by the holder at his sole option in the proper court of the City of Manila, in the City of Makati, in the Province of Rizal or in any city or municipality where the holder has a branch office. Resolve the motion to dismiss. Answer: Motion to dismiss denied. The venue stipulation in not restrictive and does not limit the parties only to the places mentioned therein. Besides, the stipulation speaks of an action enforcing payment by the holder. This is not such an action. (See United Financing Corporation vs. Gayapa (1987) 231 Question: P sued D in the RTC to recover a fishpond, alleging the D illegally took physical possession of the fishpond. The RTC issued a writ of preliminary injunction placing P in possession of the fishpond, thereby dispossessing D. Was the preliminary injunction validly issued? Answer: No. Injunction does not apply to take property away from one and give it to another. Its function is to preserve the status quo ante. The only exceptions are those provided in Sec. 15 of Rule 70, governing forcible entries, and in Sec. 20 thereof involving leases, in which the court may grant a writ of preliminary mandatory injunction. But these exceptions apply only to ejectment cases and not to an action publiciana as in the instant one. (Ramos vs. CA, 163 SCRA 583, 1988) 232 Question: P, a Makati-based corporation, sued D, another Makati-based corporation in the RTC-Makati to collect rentals on Cotabato lands leased by P to D. Ds refusal to pay the demanded rentals was grounded on its claim that the lands had been expropriated by the Government under the CARP. Is the venue properly laid in Makati? Answer: Yes. The action is personal, not real; it is for enforcement of the lease contract. The complaint is not an assertion or claim of ownership; as lessee, D is estopped to deny lessors title. The action is not to recover the land but only to collect rentals. Davao Abaca Plantation Co. vs. Dole Philippines, Inc. 12.1.2000.

Silliman University College of Law 241 Remedial Law Drills (Bautista Exams) Bar Ops 2002 Series 20 by: louie and den Via Veritas Vita 56 of 57

233 Question: Answer:

Can there be alternative plaintiffs? Yes. See Rule 3, Sec. 6

234 Question: In an action for sum of money by P against D in the RTC, judgment for P became final and executory. The writ of execution was levied on land to which X claims title. So, X filed in this RTC a motion to discharge the levy. What ruling? Answer: Deny the motion to discharge levy. RTC has no jurisdiction to resolve the issue between P and X. This issue should be raised in a separate action which X should file against D and the levying sheriff. This separate action is the proper action referred to in Rule 39, Sec. 16 (see Gutant vs. Togonon, (CA, 1991) 235 Question: Suppose defendant moves to dismiss a complaint but, pending the resolution of this motion to dismiss, plaintiff amends the complaint a) b) Does the defendant have to ask for leave of court to file an answer to the amended complaint? What result if the defendant does not answer the amended complaint?

Answer: a) No. The amended complaint supersedes the original complaint and stands as a new complaint which defendant has the right to answer. (See Rule 11, Sec. 3) b) On the motion of the plaintiff, defendant may be declared in default for failure to answer. The motion to dismiss, not being an answer, is not deemed repleaded in respect to the amended complaint. Under Section 3, Rule 11, only an answer (not a motion to dismiss) filed before the amendment shall stand as an answer to the amended complaint. 236 Question: P and D executed a contract whereby P agreed to deliver a specified bulldozer to D to assist the latter in his logging operations. Claiming that the bulldozer delivered to him by P was not that agreed upon, D sued P in RTC-Rizal for the delivery of the bulldozer specified in their contract. While this case was pending, P sued D in RTC-Davao for the purchase price of the bulldozer. Can the RTC-Davao action be properly maintained? (09 January 2002, No VI-a) Answer: No. It is dismissible for litis pendencia i.e., the pendency of the RTC-Rizal case. Ps claim for the purchase prize should have been set up as a compulsory counterclaim in the RTC-Rizal case. (Lamis Ent vs Laganon, 108 SCRA 740, 1981) 237 Question: In an action for unlawful detainer by P against D in the MTC, judgment was rendered against D ordering him to yield the premises to P. On Ds timely appeal to the RTC, the latter found that he had been unlawfully withholding possession of the premises for more than one year prior to the filing of the complaint and that therefore the proper action was accion publiciana and not unlawful detainer, and the RTC thereby declared the MTC without jurisdiction over the case and nullified the proceedings therein. So, P filed a Rule 65 petition for certiorari with the CA against the RTC decision. How should the CA resolve the certiorari petition? Answer: The CA should dismiss the certiorari petition. There was on the RTCs part no error of jurisdiction but only error of judgment and appeal was an available and adequate remedy. (Fernando vs. Vasquez, 31 SCRA 288 [1970])

Silliman University College of Law 241 Remedial Law Drills (Bautista Exams) Bar Ops 2002 Series 20 by: louie and den Via Veritas Vita 57 of 57 238 Question: P sued D to quiet title to a parcel of land claiming to be the owner of the land and to have inherited it from his father. On the other hand, D answered by asserting ownership over the same land in himself by claiming to have inherited it from his own father, the alleged owner. P filed a reply to which was attached a document entitled Acknowledgment of Ownership duly signed by Ds father and conceding ownership of the land to Ps father. After pre-trial, the court rendered summary judgment in Ps favor on the ground that the genuineness and due execution of the document annexed to Ps reply was not denied by D under oath. Is the summary judgment correct? Answer: No. In the first place, there was no motion for summary judgment. In the second place, the issue of ownership is a genuine factual issue which has to be resolved by a trial on the merits. There is no admission of the genuineness and due execution of the Acknowledgment of Ownership because this document was signed by Ds father and not by D himself and so there was no need for D to deny it under oath. (Cadirao vs. Estenzo, 132 SCRA 93) 239 Question: May a court order the immediate arrest of a witness who has failed to obey a subpoena in a civil case pending with it? Answer: No. Failure to obey subpoena constitutes indirect, not direct, contempt for which the alleged contemnor could not be adjudged guilty without a hearing. Properly, the court should first issue an order requiring the alleged contemnor to show cause why he should not be punished for disobedience to its process in order to give him a chance to explain his failure to appear as witness. (See Gardones vs. Delgado, 58 SCRA 58 (1974) 240 Question: Can the Court of Appeals try a case?

Answer: Yes. When necessary to resolve factual issues raised in cases falling within its original and appellate jurisdiction. (BP 129, Sec. 9, as amended by RA NO. 7902) 241 Question: The MTC rendered judgment in an unlawful detainer case in plaintiffs favor ordering the defendant to vacate the premises and to pay rentals in arrears. Defendant duly appealed from this judgment to the RTC but upon his failure to deposit the requisite supersedeas bond with the MTC, the MTC issued a writ of execution ordering the execution of the appealed judgment with respect to the restoration of possession. Was the writ of execution validly issued? Answer: No. The MTC has no jurisdiction to issued the execution writ. The appeal had already been perfected. It is the RTC which should issue the writ of execution. ( 1997 rule of Civil Procedure, Rule 70, Sec. 19)

Funding:

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