POINTERS FOR FINAL EXAMS

CIVIL PROCEDURE

1. Distinctions between Summary Judgment and Judgment on the Pleadings

Summary Judgment Judgment on the pleadings

Based on the pleadings depositions, Based solely on the Pleadings
admissions and affidavits (complaint and answer
Available to both Plaintiff and Generally available only to the
defendant plaintiff unless the defendant
presents a counterclaim
There is no genuine issue between The answer fails to tender an issue or
the Parties i.e. There may be issues there is an admission of material
but these are irrelevant allegations
10-day notice required 3-day notice required
May be interlocutory or on the On the merits
merits
Available only in actions to recover a Available in any action EXCEPT
debt, or for a liquidated sum of annulment of marriage, legal
money or for declaratory relief separation, or declaration of nullity
cases
If sought by PLAINTIFF it must be There is already an answer filed
filled at any time after an answer is
served.

If sought by DEFENDANT may be filed

at any time even before there is
answer

2. Distinctions between Demurrer to Evidence in Civil Cases and Demurrer to Evidence in

Criminal Cases

Civil Cases Demurrer of Evidence Criminal cases Demurer of evidence

Defense for the accused may file
Defendant files a demurrer.
Court may motu proprio dismiss the
Court cannot motu propio dismiss the action for insufficiency of prosecution’s
case for insufficiency of plaintiffs evidence evidence after it has rested its cases [Sec
23, Rule 119]
Civil Cases Demurrer of Evidence Criminal cases Demurer of evidence
Defendant need not ask for leave of court May be filed with or without leave of
court

If court denies the demurrer, defendant If court denies the demurrer

will present his evidence 1) Filed WITH leave of court, accused
may present evidence
2) filed WITHOUT leave of court,
accused can NO longer present
evidence
If plaintiff’s evidence insufficient court will If prosecution’s evidence insufficient,
grant demurrer by dismissing the court will grant demurrer by rendering
complaint judgment of ACQUITTAL
The judgment of dismissals IS Judgment of ACQUITTAL IS NOT
APPEALABLE. APPEALABLE.

If REVERSED by a higher court, that court DOUBLE JEOPARDY RULE SETS IN

CANNOT REMAND, it will decide based on
plaintiff’s evidence.

3. “Prior or Contemporaneous Rule” in attachment proceedings and the exceptions.

(Rule 57)

GENERAL RULE: A writ of attachment may be issued ex parte even before the summons is
served upon the defendant but a writ may not be implemented until jurisdiction over the
person is acquired by service of summons. Otherwise, the implementation is null and void.
[Riano]

Exceptions to Contemporaneous Service of Summons: [Sec. 5, Rule 57]

(1) Summons could not be served personally or by substituted service despite diligent efforts,
or
(2) Defendant is a resident of the Philippines temporarily absent therefrom, or
(3) Defendant is a non-resident, or
(4) The action is in rem or quasi in rem

4. Effectivity and lifetime of a temporary restraining order in the trial court, Court of
Appeals and Supreme Court

TEMPORARY RESTRAINING ORDER - A TRO is issued in order to preserve the status quo until
the hearing of the application for preliminary injunction. [Bacolod City Water v. Labayen, G.R.
No. 157494 (2004)]
An application for a TRO shall be acted upon only after all parties are heard in a summary
hearing, which shall be conducted within 24 hours after the sheriff's return of service and/or
the records are received by the branch selected by raffle. [Sec. 4, Rule 58]

Effectivity of TRO
 Effectivity is NOT extendible. No court shall have authority to extend or renew the same
on the ground for which it was issued
 If issued by the CA – effective for 60 days from service
 If issued by SC – effective until further orders

GENERAL RULE: Before preliminary injunction may be granted, there must be prior notice to
person sought to be enjoined and there must be a hearing

PROCEDURE WHEN AN APPLICATION FOR A WRIT OF PRELIMINARY INJUNCTION OR TRO IS

INCLUDED IN A COMPLAINT OR INITIATIORY PLEADING

If filed in a multiple-sala, shall proceed as follows:

(1) Verified complaint and bond is filed
(2) Determine if there is great or irreparable injury or extreme urgency, which warrants
the issuance of a TRO
o If yes, go to Procedure for Issuance of
TRO
(3) In both cases, Notice shall then be served to the party sought to be enjoined. There
must be prior and contemporaneous service of summons (exceptions also apply)

PROCEDURE FOR ISSUANCE OF TRO

(1) If it appears that great or irreparable injury would result to the applicant before the matter
can be heard on notice:

(a) Summary hearing on the application of the TRO within 24 hours after sheriff’s return
of service and/or records are received by the branch selected by raffle
(b) The court may issue a TRO effective for 20 days from service on the party sought to
be enjoined

Within the 20 day period:

 The applicant must show cause why injunction should not be granted
 The court will determine WON the preliminary injunction shall be granted.
If granted, the court will issue the corresponding order

(2) If the matter is of extreme urgency and the applicant will suffer grave injustice and
irreparable injury
(a) A TRO may be issued ex parte (after raffling of case) ordered by the Executive judge
of a multiple sala court or the presiding judge of a single-sala court
(b) Effective for 72 hours from issuance
 (i) The applicant must then immediately comply with Sec. 4 as to service of summons
and documents
(ii) The Executive Judge shall then summon the parties to a conference and raffle the
case in their presence

Within the 72-hr period

 The Presiding Judge before whom the case is pending shall conduct a summary hearing
to determine whether the TRO shall be extended until application for preliminary
injunction can be heard
 In no case shall the total period of effectivity of the TRO exceed 20 days, including the
original 72 hours

Injunction is a judicial writ, process, or proceeding whereby a party is ordered to do or refrain

from doing a particular act.

Preliminary Injunction is an ancillary or preventive remedy where a court requires a person, a

party or even a court or tribunal either to refrain from (prohibitory), or to perform (mandatory),
particular acts during the pendency of an action. It is only a temporary remedy.

5. Omnibus Motion (Rule 15) and exceptions ( in relation to Rule 9 and Rule 16)

OMNIBUS MOTION RULE (sec 15) - A motion attacking a pleading, order, judgment, or
proceeding must include all objections then available. All objections not included in the
motion are deemed waived. [Sec. 8, Rule 15]

Purpose: To require the movant to raise all available exceptions for relief during a single
opportunity so that multiple and piece-meal objections may be avoided

Exceptions:
(1) Lack of jurisdiction over subject matter
(2) Litis pendentia
(3) Res judicata
(4) Prescription [Sec. 8, Rule 15; icow Sec. 1, Rule 9]
 6. Requisites for the issuance of a writ of preliminary injunction

REQUISITES
(1) There must be a verified application
(2) The applicant must establish:
(a) The existence of a clear and unmistakable right that must be protected; that
is, right in esse;
(b) A material and substantial invasion of such right; and
(c) An urgent and paramount necessity for the writ to prevent serious damage
(3) The applicant must post a bond, unless otherwise exempted by the court
(4) As to a writ of preliminary injunction, there must be notice and hearing

KINDS OF INJUNCTION
(1) Preliminary Preventive Injunction – Prohibits the performance of a particular act or acts
(2) Preliminary Mandatory Injunction – Requires the performance of a particular act or acts.
This is an extreme remedy which will be granted only on showing that:
(a) The invasion of the right is material and substantial
(b) Right of complainant is clear and unmistakable
(c) There is an urgent and paramount necessity

7. Distinction between deposition and affidavit

Deposition is a written testimony of witness in course of judicial proceedings, in advance of trial

and hearing, while affidavit is a mere sworn written statement.

Deposition is an opportunity for cross-examination, while affidavits are ex parte statements

without formal interrogation and cross-examination.

Depositions can be competent testimonial evidence while affidavits are not admissible in
evidence except in cases governed by the rule on summary procedure
 8. Instances wherein plaintiff/proper party may apply for a writ of preliminary attachment

GROUNDS FOR ISSUANCE [SEC. 1, RULE 57] - There are only specific situations where
preliminary attachment may issue. The grounds are EXCLUSIVE:

(1) Action for recovery of a specified amount of money or damages, except moral and
exemplary,

(a) On a cause of action arising from law, contract, quasi-contract, delict, or quasi-delict
(b) Against a party who is:
(i) about to depart from the Philippines
(ii) with intent to defraud his creditors;

(2) Action for money or property, embezzled or fraudulently misapplied or converted to

his own use by either:
(a) A public officer;
(b) An officer of a corporation;
(c) An attorney, factor, broker, agent, or clerk, in the course of his employment
as such; or
(d) Any other person in a fiduciary capacity, or for a willful violation of duty;

(3) Action to recover the possession of property unjustly or fraudulently taken, detained or
converted,
(a) When the property, or any part thereof, has been concealed, removed, or disposed
of to prevent its being found or taken by the applicant or an authorized person;
NOTE: The rule makes no distinction between real and personal property [Riano]

(4) Action against a party who has been guilty of a fraud in contracting the debt or incurring the
obligation upon which the action is brought, OR in the performance thereof;
NOTE: The delivery of counterfeit money or knowingly issuing a bounced check are
considered as grounds under this rule [Riano]

(5) Action against a party who:

(a) Has removed or disposed of his property, or is about to do so,
(b) With intent to defraud his creditors

(6) Action against a party who:

(a) Does not reside and is not found in the Philippines; or
(b) On whom summons may be served by publication.

NOTE: The persons on whom summons may be served by publication are:

(a) Residents defendants whose identity or whose whereabouts are unknown [Sec. 14, Rule 14]
(b) Resident defendants who are temporarily out of the country [Sec. 16, Rule 14]
 9. Requisites to stay execution of judgment in plaintiff’s favor in an ejectment suit (Rule
70)

HOW TO STAY IMMEDIATE EXECUTION OF JUDGMENT [Sec. 19, Rule 70]

JUDGMENT OF THE MTC

GENERAL RULE: Judgment of the MTC against defendant in ejectment cases is immediately
executory.

EXCEPTION:
When the following concur:
(1) The defendant perfects his appeal;
(2) He files a sufficient supersedeas bond to pay the rents, damages, and costs accruing down
to the time judgment appealed from; and
(3) He deposits with the appellate court:
(a) The amount of rent due from time to time under the contract, or
(b) In the absence of contract, the reasonable value of the use and occupation of
premises for the preceding month or period determined by judgment on or before the
10th day of each succeeding month or period [Chua v. CA, G.R. No. 113886 (1998)]
All of these requisites must concur. The deposit is a mandatory requirement; hence, if it is not
complied with, execution will issue as a matter of right. [Antonio v. Geronimo, G.R. No.
124779(2005)]

JUDGMENT OF THE RTC

The judgment of the Regional Trial Court against the defendant shall be immediately executory,
without prejudice to a further appeal that may be taken therefrom. [Sec. 21, Rule 70]

10. Matters NOT appealable or non-appealable cases (Rule 41)

JUDGMENTS AND FINAL ORDERS SUBJECT TO APPEAL; MATTERS NOT APPEALABLE [SEC. 1-2,
RULE 41, AS AMENDED BY AM NO. 07-7-12-SC]

1) Appeal may be taken from a judgment or final order that completely disposes of the case, or
of a particular matter therein when declared by the Rules to be appealable

(2) No appeal may be taken from:

(a) An order denying a petition for relief or any similar motion seeking relief from
judgment;
(b) An interlocutory order;
(c) An order disallowing or dismissing an appeal;
(d) An order denying a motion to set aside a judgment by consent, confession or
compromise on the ground of fraud, mistake or duress, or any other ground vitiating
consent;
 (e) An order of execution;
(f) A judgment or final order for or against one or more of several parties or in separate
claims, counterclaims, crossclaims and third-party complaints, while the main case is
pending, unless the court allows an appeal therefrom; and
(g) An order dismissing an action without prejudice (not a judgment on the merits).

Note: A.M. No. 07-7-12-SC removed from the original list “an order denying a motion for
new trial or reconsideration.” Nevertheless, Rule 37, Sec. 9 still states that no appeal can
be made from an order denying MR or MNT. Only final judgments or orders can be
appealed as distinguished from interlocutory judgments or orders which are not
appealable.

An interlocutory order is one that does not finally dispose of the case, and does not
end the court's task of adjudicating the parties’ contentions and determining their rights
and liabilities as regards each other, but obviously indicates that other things remain to
be done. [BPI v. Lee, G.R. No. 190144 (2012)]

Remedy against Matters not Appealable

In those instances where the judgment or final order is not appealable, the aggrieved
party may file the appropriate special civil action under Rule 65. [Sec. 1, Rule 41]

CASES:

Province of Camarines Sur v. Court of Appeals and City of Naga , G.R. No. 175064, September
18, 2009, 600 SCRA 569

DOCTRINES:

Where an appeal would have been an adequate remedy but it was lost through
petitioner’s inexcusable negligence, certiorari is not in order. x x x Certiorari cannot be
resorted to as a substitute for the lost remedy of appeal x x x.. Time and again it has
been ruled that [the] remedies of appeal and certiorari are mutually exclusive and not
alternative or successive x x x.

Likewise, the doctrine that certiorari cannot be resorted to as a substitute for the lost
remedy of appeal applies only when a party actually files a Petition for Certiorari under
Rule 65 in lieu of a Petition for Review under Rule 45, since the latter remedy was
already lost through the fault of the petitioning party.

For a Petition for Certiorari under Rule 65 of the Rules of Court to prosper, the
following requisites must be present:
(1) the writ is directed against a tribunal, a board or an officer exercising judicial or
quasi-judicial functions;
 (2) such tribunal, board or officer has acted without or in excess of jurisdiction or with
grave abuse of discretion amounting to lack or excess of jurisdiction; and
(3) there is no appeal or any plain, speedy and adequate remedy in the ordinary course
of law.

On the other hand, Rule 45 of the Rules of Court pertains to a Petition for Review on
Certiorari whereby "a party desiring to appeal by certiorari from a judgment, final order
or resolution of the x x x the Regional Trial Court x x x, may file with the Supreme Court
a verified petition for review on certiorari. The petition may include an application for a
writ of preliminary injunction or other provisional remedies and shall raise only
questions of law, which must be distinctly set forth

Declaratory relief - is defined as an action by any person interested in a deed, will,

contract or other written instrument, executive order or resolution, to determine any
question of construction or validity arising from the instrument, executive order or
regulation, or statute; and for a declaration of his rights and duties thereunder. The only
issue that may be raised in such a petition is the question of construction or validity of
provisions in an instrument or statute.

The requisites of an action for declaratory relief are:

(1)there must be a justiciable controversy between persons whose interests are
adverse;
(2) the party seeking the relief has a legal interest in the controversy; and
(3) the issue is ripe for judicial determination.33

Lim v. Lazaro, G.R. No. 185734, July 3, 2013

DOCTRINE:

Preliminary attachment, under Rule 57 of the Rules of Court (Rule 57), is an ancillary
remedy applied for not for its own sake but to enable the attaching party to realize upon
the relief sought and expected to be granted in the main or principal action; it is a
measure auxiliary or incidental to the main action. As such, it is available during its
pendency which may be resorted to by a litigant to preserve and protect certain rights
and interests during the interim, awaiting the ultimate effects of a final judgment in the
case. In addition, attachment is also availed of in order to acquire jurisdiction over the
action by actual or constructive seizure of the property in those instances where
personal or substituted service of summons on the defendant cannot be effected.

In this relation, while the provisions of Rule 57 are silent on the length of time within
which an attachment lien shall continue to subsist after the rendition of a final
judgment, jurisprudence dictates that the said lien continues until the debt is paid, or
the sale is had under execution issued on the judgment or until the judgment is
 satisfied, or the attachment discharged or vacated in the same manner provided by
law.

Luzon Development Bank v. Krishman, G.R. No. 203530, April 13, 2015

DOCTRINE
Section 2, Rule 57 of the Rules of Court explicitly states that "[a]n order of attachment
may be issued either ex parte or upon motion with notice and hearing by the court in
which the action is pending, or by the Court of Appeals or the Supreme Court, and must
require the sheriff of the court to attach so much of the property in the Philippines of
the party against whom it is issued, not exempt from execution, as may be sufficient to
satisfy the applicant's demand, unless such party makes deposit or gives a bond as
hereinafter provided in an amount equal to that fixed in the order, which may be the
amount sufficient to satisfy the applicant's demand or the value of the property to be
attached as stated by the applicant, exclusive of costs."

Section 5 of the same Rule likewise states that "[t]he sheriff enforcing the writ shall
without delay and with all reasonable diligence attach, to await judgment and execution
in the action, only so much of the property in the Philippines of the party against whom
the writ is issued, not exempt from execution, as may be sufficient to satisfy the
applicant's demand, unless the former makes a deposit with the court from which the
writ is issued, or gives a counter-bond executed to the applicant, in an amount equal to
the bond fixed by the court in the order of attachment or to the value of the property to
be attached, exclusive of costs."

From the foregoing, it is evidently clear that once the writ of attachment has been
issued, the only remedy of the petitioners in lifting the same is through a cash deposit or
the filing of the counter-bond. Thus, the Court holds that petitioner's argument that it
has the option to deposit real property instead of depositing cash or filing a counter-
bond to discharge the attachment or stay the implementation thereof is unmeritorious

One of the ways to secure the discharge of an attachment is for the party whose
property has been attached or a person appearing on his behalf, to post a counterbond
or make the requisite cash deposit in an amount equal to that fixed by the court in the
order of attachment.

Spouses Agner v. BPI Family Savings Bank, June 3, 2013, G.R. No. 182963

DOCTRINE
It is an issue of fact that is not a proper subject of a petition for review under Rule 45.
An issue is factual when the doubt or difference arises as to the truth or falsehood of
alleged facts, or when the query invites calibration of the whole evidence, considering
mainly the credibility of witnesses, existence and relevancy of specific surrounding
circumstances, their relation to each other and to the whole, and the probabilities of the
 situation. Time and again, We stress that this Court is not a trier of facts and generally
does not weigh anew evidence which lower courts have passed upon.

Manalang v. Bacani, G.R. No. 156995, January 12, 2015.

DOCTRINE
An appeal of the judgment in an ejectment case, shall not conduct a rehearing or trial de
novo. In this connection, Section 18, Rule 70 of the Rules of Court clearly provides:
Sec. 18. Judgment conclusive only on possession; not conclusive in actions involving title
or ownership. — x x x.
The judgment or final order shall be appealable to the appropriate Regional Trial Court
which shall decide the same on the basis of the entire record of the proceedings had in
the court of origin and such memoranda and/or briefs as may be submitted by the
parties or required by the Regional Trial Court.

Boundary dispute is not about possession, but encroachment, that is, whether the
property claimed by the defendant formed part of the plaintiff’s property. A boundary
dispute cannot be settled summarily under Rule 70 of the Rules of Court, the
proceedings under which are limited to unlawful detainer and forcible entry. In unlawful
detainer, the defendant unlawfully withholds the possession of the premises upon the
expiration or termination of his right to hold such possession under any contract,
express or implied. The defendant’s possession was lawful at the beginning, becoming
unlawful only because of the expiration or termination of his right of possession. In
forcible entry, the possession of the defendant is illegal from the very beginning, and
the issue centers on which between the plaintiff and the defendant had the prior
possession de facto.

It is fundamental that the allegations of the complaint and the character of the relief
sought by the complaint determine the nature of the action and the court that has
jurisdiction over the action. To be clear, unlawful detainer is an action filed by a lessor,
vendor, vendee, or other person against whom the possession of any land or building is
unlawfully withheld after the expiration or termination of the right to hold possession
by virtue of any contract, express or implied. To vest in the MTC the jurisdiction to effect
the ejectment from the land of the respondents as the occupants in unlawful detainer,
therefore, the complaint should embody such a statement of facts clearly showing the
attributes of unlawful detainer