2nd Version Remedial Law Bar Ops Lecture

8/6/2019 2nd Version Remedial Law Bar Ops Lecture

1/98

1

CIVIL PROCEDURE

BAR OPS

JULY 2008


2/98

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CIVIL PROCEDURE

MAJOR SOURCES:

1987 CONSITUTION

BP 129, AS AMENDED REORGANIZATION ACT

RA 7691 EXPANDING MTC JURISDICTION

RA 7902 AND RA 8246 CA JURISDICTION RA 9282 CTA JURISDICTION

RA 8239 SANDIGANBAYAN JURISDICTION

RA 8369 FAMILY COURTS ACT OF 1997

RA 9285 ADR LAW

RA 7760 Local Government Code (Secs. 399-422)

Other special laws


3/98

3

MAJOR SOURCES: JURISPRUDENCE

RULES OF COURT

RULE 1 GENERAL PROVISIONS

PART I CIVIL ACTIONS RULES 2 TO 39 ORDINARY CIVIL ACTION

RULES 40 TO 56APPEALS/PROCEDURE BEFORECA, SC

RULES 57 TO 61 PROVISIONAL REMEDIES RULES 62 TO 71 SPECIAL CIVIL ACTIONS

SC Circulars/Adm Matters

Internal Rules of the CA

CIVIL PROCEDURE


4/98


5/98

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POWER OF JUDICIAL REVIEW ACTUAL CASE

RIPE FOR ADJUDICATION

STANDING

DOCTRINE OF PRIMARY JURISDICTION PRINCIPLE OF HIERARCHY OF COURTS

DOCTRINE OF JUDICIAL STABILITY

RULE ON EQUITY JURISDICTION RULE ON ADHERENCE OF JURISDICTION

NON-PAYMENT OF FILING FEES

RETROACTIVE APPLICATION

JURISDICTION


6/98

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JURISDICTION

JURISDICTION

DEFINITION: POWER AND AUTHORITY OF ACOURT TO HEAR, TRY AND DECIDE A CASE

HOW ACQUIRED: FILING OF THE COMPLAINT

KINDS:SUBJECT MATTER DETERMINED BY THE ALLEGATIONS

OF THE COMPLAINT AND THE LAW AT THE TIME OFCOMMENCEMENT OF THE ACTION

PERSON VOLUNTARY APPEARANCE OR PROPERSERVICE OF SUMMONS


7/98

7

JURISDICTION

EXCLUSIVE VS. CONCURRENT

ORIGINAL VS. APPELLATE

JURISDICTION VS. VENUE

ERRORS OF JUDGMENT (IN THE EXERCISE OFJURISDICTION) VS. ERRORS OFJURISDICTION (WANT OF JURISDICTION)

JURISDICTION BY ESTOPPEL


8/98

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JURISDICTION

SUPREME COURT

ORIGINAL JURISDICTION OVER CASES AFFECTING AMBASSADORS, OTHER PUBLIC MINISTERS AND

CONSULS, OTHER PETITIONS FOR CERTIORARI, PROHIBITION,MANDAMUS, QUO WARRANTO AND HABEAS CORPUS

REVIEW, REVISE, REVERSE, MODIFY OR AFFIRM ONAPPEAL OR CERITORARI FINAL JUDGMENTS OR ORDERSOF LOWER COURTS INVOLVING: CONSTITUTIONALITY OF A TREATY, INTERNATIONAL OR

EXECUTIVE AGREEMENT OR LAW, ORDINANCE

LEGALITY OF ANY TAX, IMPOST, ASSESSSMENT OR TOLL OR ANYPENALTY

JURISDICTION OF ANY LOWER COURT

CRIMINAL CASES IN WHICH PENALY IS RECLUSION PERPETUA ORHIGHER

ONLY ERROR OR QUESTION OF LAW INVOLVED


9/98

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JURISDICTION

COURT OF APPEALS ISSUE WRITS OF MANDAMUS, PROHIBITION,CERTIORARI, HABEAS CORPUS AND QUOWARRANTO, WHETHER OR NOT IN AID OF ITS

APPELLATE JURISDICTION

ACTIONS TO ANNUL RTC JUDGMENT

EXCLUSIVE APPELLATE JURISDICTION OVER FINALJUDGMENTS, ORDERS OF THE RTC AND QUASIJUDICIAL AGENCIES (WITH EXCEPTIONS)


10/98


11/98


12/98

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JURISDICTION

MTC CIVIL ACTIONS AND PROBATE WHERE PERSONAL

PROPERTY/ESTATE DOES NOT EXCEEDTHRESHOLD AMOUNTS

FORCIBLE ENTRY AND UNLAWFUL DETAINER

REAL ACTION WHERE ASSESSED VALUE DOES NOTEXCEED THRESHOLD AMOUNTS

THRESHOLD AMOUNTS ARE COMPUTED EXCLUSIVE OFINTEREST,, ATTORNEYS FEES, LITIGATION EXPENSES ANDCOSTDAMAGES OF WHATEVER KIND

EXCLUSION OF DAMAGES OF WHATEVER KIND APPLIES TOWHERE DAMAGES ARE MERELY INCIDENTAL TO OR ACONSEQUENCE OF THE MAIN CAUSE OF ACTION. WHERETHE CLAIM FOR DAMAGES IS THE MAIN CAUSE OF ACTIONOR ONE OF THE CAUSES OF ACTION, THE AMOUNT OF SUCHCLAIM SHALL BE CONSIDERED


13/98

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KINDS OF ACTIONS

AS TO BASIS (RELATES TO VENUE)

REAL ACTION AFFECTS TITLE TO OR SEEKSRECOVERY OF POSSESSION OF REAL PROPERTY

OR INTEREST THEREIN (PARTITION,CONDEMNATION, FORECLOSURE OF REM)

PERSONAL ACTION SEEKS RECOVERY OFPERSONAL PROPERTY, AND ALL OTHER ACTIONS(ENFORCEMENT OR RESCISSION OF CONTRACT,RECOVERY OF DAMAGES)


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AS TO OBJECT (RELATES TO SERVICE OF

SUMMONS)

IN REM ACTION IS AGAINST ALL WHO MIGHT BEMINDED TO OBJECT AGAINST RIGHT TO BEESTABLISHED; BINDS THE WHOLE WORLD OR

AGAINST THE THING ITSELF

QUASI IN REM ACTION IS AGAINST ANINDIVIDUAL BUT SUBJECTS HIS INTERST IN

PROPERTY TO OBLIGATION; CONCLUSIVE ONLYBETWEEN THE PARTIES

IN PERSONAM ACTION ESTABLISHES CLAIMAGAINST A PERSON ON BASIS OF PERSONAL

LIABILITY; BINDS HIM ONLY

KINDS OF ACTIONS


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PARTIES

PERSONALITY/CAPACITY TO SUE

REPRESENTATIVE (principal or beneficiary)

SPOUSE/MINOR (with other spouse/parent or guardian adlitem)

CLASS SUIT (numerous, common interest, sufficient numberand representative; see Rule 17, Sec. 2)

UNKNOWN (identity or name)

WITHOUT JURIDICAL PERSONALITY (may be sued under

name) INDIGENT (exempt from filing fees)

OSG (validity of law, treaty, etc)

NEW PARTIES (Rule 6, Sec. 12)


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PARTIES

EVENT-RELATED

DEATH OF PARTY/DUTY OF COUNSEL (notify courtand give name of legal representative)

DEATH OR SEPARATION OF PUBLIC OFFICER(successor may be substituted)

PARTY BECOMES INCOMPETENT ORINCAPACITATED (to be assisted by legal guardianor ad litem)

TRANSFER PENDENTE LITE (notice of lis pendens)

DEATH OF DEFENDANT BEFORE ENTRY (continue

to entry then file claim against the estate)


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PLEADINGS

KINDS: COMPLAINT

ANSWER

NEGATIVE DEFENSE

AFFIRMATIVE DEFENSE

COUNTERCLAIM

COMPULSORY

PERMISSIVE CROSS-CLAIM

THIRD PARTY COMPLAINT

REPLY


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PLEADINGS

PARTS CAPTION

BODY PARAGRAPHS

HEADINGS

RELIEF DATE

SIGNATURE (of counsel means he has read the pleading, tothe best of his knowledge, information and belief, goodground and not for delay)

ADDRESS (not post office no.) VERIFICATION (based on personal knowledge or authentic

records)

CERTIFICATION AGAINST FORUM SHOPPING (for initiatorypleadings; absence may cause dismissal without prejudice or

constitute indirect contempt)


26/98


27/98

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PLEADINGS

EFFECT OF FAILURE TOPLEAD

DEFENSES/OBJECTIONSCOMPULSORY COUNTERCLAIM/CROSS-CLAIM NOT SET

UP BARRED

NOT PLEADED WAIVED EXCEPT: JURISDICTION LITIS PENDENTIA

RES JUDICATA

PRESCRIPTION

DEFAULT/REMEDIESMotion to lift/set aside default orderAppeal from default judgment

Petition for relief

Petition for certiorari

Petition to annul judgment


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29/98


30/98


31/98


32/98


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SUMMONS

When: EXTRATERRITORIAL SERVICE

DEFENDANT DOES NOT RESIDE, IS NOT FOUND, IN PHILAND

ACTION AFFECTS PERSONAL STATUS; OR,

RELATES TO, SUBJECT IS, PROPERTY IN PHIL, IN WHICH

DEFENDANT HAS INTEREST OR RELIEF IS TO EXCLUDEDEFENDANT THEREFROM; OR,

PROPERTY OF DEFENDANT HAS BEEN ATTACHED

How: EXTRATERRITORIAL SERVICE PERSONAL SERVICE OUT OF THE PHIL; OR

PUBLICATION IN A NEWSPAPER OF GENERALCIRCULATION AND

BY REGISTERED MAIL TO LAST KNOWN ADDRESS


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35/98


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37/98

37

MOTION TO DISMISS

LITIS PENDENTIA

When is there litis pendentia?

Identity of parties, or at least such asrepresenting the same interests in both actions

Identity of rights asserted and reliefs prayed for,the reliefs founded on the same facts

Identity in both cases is such that the judgmentthat may be rendered in the pending case wouldregardless of which party is successful amount tores judicata in the other

Which case will be dismissed

Priority in time rule

More appropriate action rule


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MOTION TO DISMISS

RES JUDICATA

REQUISITES

FORMER JUDGMENT MUST BE FINAL

RENDERED BY COURT WITH JURISDICTION OVER THESUBJECT MATTER AND PARTIES

JUDGMENT ON THE MERITS

THERE MUST BE BETWEEN THE FIRST AND SECONDACTIONS, IDENTITY OF PARTIES, IDENTITY OF SUBJECTMATTER AND IDENTITY OF CAUSES OF ACTION

WHETHER SAME EVIDENCE WHICH IS NECESSARY TOSUSTAN THE SECOND ACTION WOULD HAVE BEENSUFFICIENT TO AUTHORIZE A RECOVERY IN THE FIRSTEVEN IF THE NATURE OR FORMS OF THE TWO ACTIONS

ARE DIFFERENT


39/98


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MOTION TO DISMISS

FILE WITHIN PERIOD TO ANSWER, IF DENIED,BALANCE OF PERIOD BUT NOT LESS THAN 5DAYS

COURT RESOLUTION:

DENY MOTION

ORDER AMENDMENT

GRANT MOTION

NOT DEFER RESOLUTION


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MOTION TO DISMISS

DISMISSAL IS APPEALABLE AND BARS

REFILING WHERE GROUND IS:Res judicata

Prescription

Claim is unenforceable

Claim has been paid, waived, abandoned or extinguished

DISMISSAL WITHOUT PREJUDICE NOT

APPEALABLE GROUNDS AS AFFIRMATIVE DEFENSES

Preliminary hearing

Where dismissal granted, counterclaim may be pursued in

same or separate action


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DISMISSAL OF ACTIONS

NOTICE BY PLAINTIFF

BEFORE SERVICE OF ANSWER OR MOTION FOR SUMMARYJUDGMENT

WITHOUT PREJUDICE EXCEPT ONCE PREVIOUSLYDISMISSED

MOTION OF PLAINTIFF COUNTERCLAIM MAY BE PROSECUTED IN SAME OR

SEPARATE ACTION

WITHOUT PREJUDICE

FAULT OF PLAINTIFF FAILURE TO APPEAR AT THE PRESENTATION OF HIS

EVIDENCE IN CHIEF

FAILURE TO PROSECUTE

FAILURE TO COMPLY WITH RULES/ORDER OF THE COURT

ADJUDICATION UPON THE MERITS


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44/98

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INTERVENTION

WHO CAN INTERVENE

ONE WHO HAS LEGAL INTEREST IN MATTER, SUCCESS OFEITHER PARTY, INTEREST AGAINST BOTH, IS ADVERSLYAFFECTED BY DISPOSITION

WILL NOT UNDULY DELAY OR PREJUDICE RIGHTS OFORIGINAL PARTIES

INTERVENTION BETTER THAN SEPARATE PROCEEDING

WHEN IS INTERVENTION PROPER DURING TRIAL

AFTER JUDGMENT

HOW TO INTERVENE BY MOTION

ATTACH PLEADING IN INTERVENTION


45/98

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SUBPOENA

KINDSAD TESTIFICANDUM

DUCES TECUM

GROUNDS TO QUASH

UNREASONABLE/OPPRESSIVE

RELEVANCY DOES NOT APPEAR

FAILURE TO ADVANCE REASONABLE COST OFPRODUCTION

100 KILOMETERS


46/98


47/98


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MODES OF DISCOVERY

PRODUCTION OR INSPECTION OF DOCUMENTSOR THINGS (RULE 27)

Upon motion for good cause

Includes ocular inspection of a place

PHYSICAL AND MENTAL EXAMINATION OFPERSONS (RULE 28)

Examined person requesting report waivesconfidentiality over other similar reports


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MODES OF DISCOVERY REFUSAL TO COMPLY WITH MODES OF DISCOVERY

Refusal to answer question during oral examination or any

interrogatory Examination may be completed or adjourned

Secure order to compel answer

Person refusing to pay reasonable expenses and attorneys fees

Contempt of court

Refusal to answer when ordered, to obey order to produce orallow entry, or to submit to examination

Matter deemed established

Refusing party prohibited from introducing evidence

Strike out pleadings

Arrest (except for refusal to be examined) Refusal to admit/failure to attend deposition, serve answers

Strike out pleadings

Dismiss action

Render default judgment

Pay reasonable expenses and attorneys fees


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ACCELERATED PROCEEDINGS

DEMURRER TO EVIDENCE

AFTER PLAINTIFF HAS COMPLETED EVIDENCE

FACTS AND LAW SHOW NO RIGHT

IF MOTION GRANTED BUT REVERSED ON APPEAL,

DEFENDANT WILL HAVE NO RIGHT TO PRESENTEVIDENCE

JUDGMENT ON THE PLEADINGS

ANSWER FAILS TO TENDER AN ISSUE

DEFENDANT ADMITS MATERIAL ALLEGATIONS

NOT AVAILABLE IN DECLARATION OF NULLITY,ANNULMENT, OF MARRIAGE, LEGAL SEPARATION


52/98


53/98

JUDGMENTS FINAL ORDERS


54/98

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EFFECT OF DOMESTIC JUDGMENT

AGAINST A SPECIFIC THING, CONCLUSIVE UPONTITLE TO THING

PROBATE OF WILL, CONCLUSIVE AS TO THE WILL

STATUS OF PERSON, CONCLUSIVE AS TO STATUS

JUDGMENTS, FINAL ORDERS,

ENTRY


55/98

JUDGMENTS FINAL ORDERS


56/98

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EFFECT OF FOREIGN JUDGMENT UPON SPECIFIC THING, CONCLUSIVE UPON

TITLE TO THE THING

AGAINST A SPECIFIC PERSON, PRESUMPTIVE

EVIDENCE OF A RIGHT AS BETWEEN THEPARTIES AND THEIR SUCCESSORS IN INTERESTBY SUBSEQUENT TITLE

MAY BE REPELLED BY EVIDENCE OF

WANT OF JURISDICTIONWANT OF NOTICE

COLLUSION

FRAUD

CLEAR MISTAKE OF LAW OR FACT

JUDGMENTS, FINAL ORDERS,

ENTRY


57/98


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POST JUDGMENT REMEDIES MOTION FOR NEW TRIAL

GROUNDSFAME

NEWLY DISCOVERED EVIDENCE

FORM

MOTION WITH AFFIDAVIT OF MERITS

MOTION WITH AFFIDAVIT OF WITNESS OR DULYAUTHENTICATED DOCUMENT

ACTION

SET ASIDE JUDGMENT AND GRANT NEW TRIAL

DENY MOTION

SECOND MOTION ALLOWED

ORDER DENYING MOTION NOT APPEALABLE

POST JUDGMENT REMEDIES


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59


MOTION FOR RECONSIDERATION

GROUNDS DAMAGES AWARDED ARE EXCESSIVE

EVIDENCE INSUFFICIENT TO JUSTIFY DECISION

DECISION IS CONTRARY TO LAW

FORM BY MOTION SPECIFICALLY POINTING OUTTHE FINDINGS OR

CONCLUSIONS NOT SUPPORTED BY EVIDENCE OR CONTRARY TOLAW, REFERRING TO EVIDENCE OR PROVISIONS OF LAW

ACTION

GRANT THUS AMEND OR REVERSE JUDGMENT DENY

GRANT OR DENY PARTIALLY

NO SECOND MOTION FOR RECONSIDERATION ALLOWED



60/98

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PETITION FOR RELIEF

KINDS FROM JUDGMENT

FROM DENIAL OF APPEAL

60 DAYS FROM NOTICE 6 MONTHS FROMENTRY

FORM

VERIFIED PETITION AFFIDAVITS SHOWING:

FAME

GOOD AND SUBSTANTIAL CAUSE OF ACTION OR DEFENSE


61/98


62/98

EXECUTION AND SATISFACTION


63/98

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EXECUTION AND SATISFACTION

MANNER OF EXECUTION

MONEY JUDGMENT IN CASH, CERTIFIED BANK CHECK, OR ACCEPTABLE MODE

LEVY

GARNISMENT

JUDGMENT FOR SPECIFIC ACT

SPECIAL JUDGMENT

PROPERTY EXEMPT FROM EXECUTION

THIRD PARTY CLAIMANT

EXECUTION SALE NOTICE

PUBLIC SALE

CERTIFICATE OF SALE

REDEMPTION


64/98


65/98

APPEALS


66/98

66

APPEALS

MTC TO RTC

BY NOTICE OF APPEAL 15 DAYS

SAME PARTIES

MATERIAL DATES

FILED IN MTC

WITH RECORD ON APPEAL 30 DAYS

SPECIAL PROCEEDINGS

MULTIPLE OR SEPARATE APPEALS

APPEAL PROCEEDINGS IN RTC


67/98

APPEALS


68/98

68

APPEALS

MODES OF APPEAL FROM RTC JUDGMENT OR FINALORDER: ORDINARY APPEAL (NOTICE OF APPEAL FILED WITH RTC;

APPEAL BRIEFS FILED WITH CA)

PETITION FOR REVIEW (FILED WITH CA)

APPEAL BY CERTIORARI (FILED WITH SC)

PERIOD TO FILE APPEAL 15 DAYS WITH RECORD ONAPPEAL 30 DAYS; HABEAS CORPUS 48 HOURS

DISMISSAL OF APPEAL BY TRIAL COURT FILED OUT OF TIME

NON-PAYMENT OF DOCKET AND OTHER FEES

APPEALS


69/98

69

APPEALS

PETITION FOR REVIEW FROM RTC(APPELLATE JURISDICTION) TO CA

VERIFIED PETITION

WITHIN 15 DAYS MAY BE EXTENDED FOR 15

DAYS; NO FURTHER EXTENSION EXCEPT FORMOST COMPELLING REASON FOR 15 DAYS

ACCOMPANIED BY DUPLICATE ORIGINAL OR TRUECOPY OF JUDGMENT, PLEADINGS, MATERIALPORTIONS OF RECORDS

CONTENTS INCLUDE MATERIAL DATES

APPEALS


70/98

70

APPEALS

APPEALS FROM QUASI JUDICIALAGENCIES CTA TO SC UNDER RULE 45

COMELEC AND COA TO SC UNDER RULE 65

NLRC TO CA UNDER RULE 65 OTHER QJA TO CA UNDER RULE 43

QUESTIONS OF FACT, OF LAW, OR MIXED QUESTIONSOF FACT AND LAW

PETITION FOR REVIEW FILED WITH CAFINDINGS OF FACT SUPPORTED BY SUBSTANTIAL

EVIDENCE BINDING ON CA

APPEALS SHALL NOT STAY AWARD OR JUDGMENTUNLESS ORDERED BY CA

APPEALS


71/98

71

APPEALS

APPEAL BY CERTIORARI TO THE SC

FROM CA, SANDIGANBAYAN, CTA OR RTC OR OTHERCOURTS

BY WAY OF PETITION FOR REVIEW ON CERTIORARI ONLYQUESTIONS OF LAW

DISMISSAL OF PETITION

APPEAL WITHOUT MERIT

PROSECUTED FOR DELAY

QUESTIONS TOO UNSUBSTANTIAL

REVIEW DISCRETIONARY WHEN COURT A QUO HAS:

DECIDED QUESTION OF SUBSTANCE DECIDED NOT IN ACCORD WITH LAW OR SC DECISIONS

DEPARTED FROM ACCEPTED AND USUAL COURSE OFJUDICIAL PROCEEDINGS

SANCTIONED DEPARTURE BY THE LOWER COURT

COURT OF APPEALS


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COURT OF APPEALS

PROCEDURE

ORDINARY APPEALED CASES APPEAL BRIEFS (RULE 44)

ORIGINAL CASES

CERTIORARI, PROHIBITION, MANDAMUS (RULE 65)

QUO WARRANTO (RULE 66)

ANNULMENT OF RTC JUDGMENTS OR FINALORDERS OR RESOLUTIONS (RULE 47)

EXTRINSIC FRAUD (WHICH COULD NOT HAVE BEENRAISED IN A MOTION FOR NEW TRIAL OR PETITION FORRELIEF) FILED WITHIN 4 YRS FROM DISCOVERY

LACK OF JURISDICTION UNLESS BARRED BY LACHES ORESTOPPEL


73/98


74/98


75/98


76/98

PRELIMINARY ATTACHMENT


77/98

77


AVAILABLE IN ACTION:

FOR MONEY OR ACTUAL DAMAGES, PARTY ABOUT TODEPART WITH INTENT TO DEFRAUD CREDITORS

FOR MONEY OR PROPERTY EMBEZZLED

FOR POSSESSION OF PROPERTY FRAUDULENTLY TAKENWHEN IT HAS BEEN CONCEALED

AGAINST A PARTY GUILTY OF FRAUD IN CONTRACTINGDEBT OR INCURRING /PERFORMING OBLIGATION

AGAINST A PARTY WHO HAS DISPOSED OF PROPERTY TODEFRAUD CREDITOR

AGAINST A PARTY NOT RESIDING NOR FOUND IN PHIL ORON WHOM SUMMONS MAY BE SERVED BY PUBLICATION



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HOW ISSUED:

EX PARTE OR WITH NOTICE AND HEARING WHEN ISSUED:

AFFIDAVIT BASED ON PERSONAL KNOWLEDGE

ANY OF THE GROUNDS IN SECTION 1

NO SUFFICIENT SECURITY FOR THE CLAIM AMOUNT DUE OR VALUE OF PROPERTY EQUAL TO CLAIMABOVE ALL LEGAL COUNTERCLAIMS

NO LEVY ENFORCED UNLESS PRECEDED ORCONTEMPORANEOUSLY WITH SERVICE OFSUMMONS EXCEPT WHERE SUMMONS CANNOT BE SERVED DESPITE

DILIGENT EFFORTS

DEFENDANT IS A NONRESIDENT, TEMPORARILY ABSENT

FROM PHIL, ACTION IN REM OR QUASI IN REM


79/98


80/98

PRELIMINARY INJUNCTION


81/98

81


KINDS

PROHIBITORY MANDATORY

GROUNDS

APPLICANT ENTITLED TO RELIEF CONSISTING OF

RESTRAINING ACT, OR REQUIRING PERFORMANCE OF ACT ACT WOULD PROBABLY WORK INJUSTICE

ACT IN VIOLATION OF RIGHTS OF APPLICANT

TENDING TO RENDER JUDGMENT INEFFECTUAL

OBJECTION INSUFFICIENT APPLICATION

IRREPARABLE INJURY TO PARTY ENJOINED

COUNTER-BOND



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72 HOUR TRO (EXEC JUDGE/PRESIDING JUDGE) EX PARTE INCASE OF EXTREME URGENCY; GRAVE INJUSTICE AND

IRREPARABLE INJURY; THEN SERVICE OF SUMMONS ANDSUMMARY HEARING TO DETERMINE IF TRO TO BE EXTENDEDNOT EXCEEDING 20 DAYS

20 DAY TRO EX PARTE IN CASE OF GREAT AND IRREPARABLEINJURY; THEN SERVICE OF SUMMONS AND SUMMARYHEARING FOR ENJOINED PARTY TO SHOW CAUSE WHY PISHOULD NOT ISSUE

PI ALWAYS WITH NOTICE AND HEARING CA 60 DAY TRO; SC TRO UNTIL FURTHER ORDERS

TRIAL COURT, CA, SB, CTA ISSUING PI AGAINST LOWERCOURT, BOARD, OFFICER, QJA TO DECIDE MAIN CASEWITHIN 6 MONTHS FROM ISSUANCE


83/98

REPLEVIN


84/98

84

WHEN/HOW TO APPLY

BEFORE ANSWER

APPLICANT IS OWNER OF PROPERTY/ENTITLEDTO POSSESSION

PROPERTY WRONGFULLY DETAINED BY ADVERSEPARTY

PROPERTY HAS NOT BEEN DISTRAINED OR TAKENFOR A TAX ASSESSMENT OR FINE OR IN

CUSTODIA LEGISACTUAL MARKET VALUE OF PROPERTY

BOND IN DOUBLE THE VALUE


85/98

INTERPLEADER


86/98

86

INTERPLEADER

WHEN PROPER

CONFLICTING CLAIMS AGAINST ONE WITHOUTINTEREST

SUMMONS ON CONFLICTING CLAIMANTS MOVE TO DISMISS OR ANSWER WITH

COUNTERCLAIM, CROSS-CLAIM, THIRD PARTYCOMPLAINT

AFTER PRE-TRIAL, COURT TO DETERMINE RIGHTSAND OBLIGATIONS

DECLARATORY RELIEF


87/98

87

DECLARATORY RELIEF

PURPOSE TO DETERMINE ANY QUESTION OF CONSTRUCTION

OR VALIDITY, AND FOR DECLARATION OF RIGHTSAND DUTIES, UNDER LAW OR CONTRACT

REFORMATION OF INSTRUMENT

QUIET TITLE OR REMOVE CLOUDS CONSOLIDATE OWNERSHIP

NOTIFY SOLICITOR GENERAL (re statute or ordinance

involved)

WHERE THERE IS ALREADY BREACH OR VIOLATION,CONVERT INTO ORDINARY ACTION

REVIEW OF COMELEC/COA


88/98

88

/

JUDGMENTS

SUPREME COURT ON CERTIORARI UNDER RULE65 WITHIN 30 DAYS

IF MR FILED, BALANCE OF 30 DAY PERIOD TOFILE BUT NOT LESS THAN 5 DAYS

FILING OF PETITION SHALL NOT STAY THEEXECUTION OF THE JUDGMENT OR FINAL ORDERUNLESS SC DIRECTS OTHERWISE

CERTIORARI, PROHIBITION,


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89

, ,

MANDAMUS

COMMON REQUIREMENTS GRAVE ABUSE OF DISCRETION

NO APPEAL NOR OTHER PLAIN, SPEEDY AND ADEQUATEREMEDY

VERIFICATION/ CERTIFICATION OF NON-FORUM SHOPPING 60 DAYS FROM NOTICE OF JUDGMENT OR DENIAL OF MR

CERTIFIED TRUE COPY OF JUDGMENT (except mandamus)

SC, CA (particularly from QJA), RTC (from lower court)

NO EXTENSION EXCEPT FOR 15 DAYS FOR COMPELLINGREASON

COURT MAY ISSUE TRO/PI

CASE A QUO TO PROCEED UNLESS TRO/PI

CERTIORARI, PROHIBITION,


90/98

90

MANDAMUS

CERTIORARI TRIBUNAL, BOARD, OFFICER WITH JUDICIAL OR QUASI-JUDICIAL

FUNCTIONS

ANNUL OR MODIFY PROCEEDINGS

PROHIBITION

TRIBUNAL, CORPORATION, BOARD, OFFICER OR PERSON, WITHJUDICIAL, QUASI-JUDICIAL OR MINISTERIAL FUNCTIONS

COMMAND RESPONDENT TO DESIST FROM FURTHER PROCEEDING

MANDAMUS TRIBUNAL, CORPORATION, BOARD,OFFICER OR PERSON UNLAWFULLY

NEGLECTS THE PERFORMANCE OF AN ACT WHICH LAW SPECIFICALLYENJOINS AS DUTY OR UNLAWFULLY EXCLUDES ANOTHER FROM USE

AND ENJOYMENT OF RIGHT OR OFFICE

COMMAND PERSON TO DO ACT AND TO PAY DAMAGES SUSTAINED BYPETITTIONER BY REASON OF WRONGFUL ACT OF RESPONDENT

QUO WARRANTO


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Q

AGAINST:

PERSON WHO USURPS, INTRUDES INTO, OR UNLAWFULLYHOLDS OR EXERCISES A PUBLIC OFFICE, POSITION ORFRANCHISE

PUBLIC OFFICER DOES AN ACT WHICH CONSISTUTES AGROUND FOR FORFEITURE OF HIS OFFICE

ASSOCIATION WHICH ACTS AS CORPORATION WITHOUTAUTHORITY

WHO COMMENCES ACTION:

PERSON/OSG (RTC MANILA, CA, SC)

WHEN:

ONE YEAR FROM ACCRUAL OF CAUSE OF ACTION

CONTRAST WITH MANDAMUS

EXPROPRIATION


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92

RTC HAS JURISDICTION REGARDLESS OF VALUE

VERIFIED COMPLAINT AGAINST ALL PERSONSOWNING AND OCCUPYING PROPERTY

PLAINTIFF MAY TAKE POSSESSION UPON DEPOSIT

OF AMOUNT EQUAL TO ASSESSED VALUE TWO STEP DETERMINATION:

AUTHORITY TO EXPROPRIATE

JUST COMPENSATION (BY 3 COMMISSIONERS)

PLAINTIFF MAY TAKE POSSESSION PENDING APPEAL MINOR/INCOMPETENT TO BE REPRESENTED BY

GUARDIAN OR GUARDIAN AD LITEM

FORECLOSURE OF REM


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93

CONTENTS OF COMPLAINT (quasi in rem)

COURT TO:

ASCERTAIN AMOUNT DUE

RENDER JUDGMENT FOR SUCH AMOUNT AND THAT SAMEBE PAID WITHIN PERIOD OF NOT LESS THAN 90 DAYS NORMORE THAN 120 DAYS FROM ENTRY (equity of redemption)

IN DEFAULT OF PAYMENT, PROPERTY TO BE SOLD ATPUBLIC AUCTION (Rule 39) TO SATISFY JUDGMENT(without right of redemption unless mortgagee is bank)

ISSUE DEFICIENCY JUDGMENT (in personam) ISSUE ORDER OF CONFIRMATION

ISSUE WRIT OF POSSESSION

PARTITION


94/98

94

ACTION TO COMPEL PARTITION OF REAL PROPERTY

IMPLEAD ALL PERSONS INTERESTED IN PROPERTY

COURT TO ORDER PARTITION

PARTIES TO EXECUTE INSTRUMENTS OF

CONVEYANCE OR COMMISSIONERS TO MAKEPARTITION

COURT TO CONFIRM

FINAL ORDER DECREEING PARTITION ANDACCOUNTING MAY BE APPEALED

EXTRAJUDICIAL OR AMICABLE PARTITION POSSIBLEWITHOUT RECOURSE TO ACTION


95/98

CONTEMPT


96/98

96

DIRECT CONTEMPT

MISBEHAVIOR IN COURT WHICH OBSTRUCTS OR INTERUPTS

PROCEEDINGS; DISRESPECT OFFENSIVE PERSONALITIES TOWARD OTHERS

REFUSAL TO BE SWORN OR TO ANSWER AS WITNESS OR TOSUBSCRIBE AN AFFIDAVIT OR DEPOSITION

INDIRECT CONTEMPT

MISBEHAVIOR OF AN OFFICER OF THE COURT IN PERFORMANCE OFHIS OFFICIAL DUTIES

DISOBEDIENCE OR RESISTANCE TO A LAWFUL WRIT, PROCESS,ORDER

ABUSE OF OR UNLAWFUL INTERFERENCE WITH PROCESSES OR

PROCEEDINGS OF A COURT NOT DIRECT CONTEMPT IMPROPER CONDUCT TENDING TO IMPEDE ADMINISTRATION OF

JUSTICE

ASSUMING TO BE AN ATTY

FAILURE TO OBEY SUBPOENA

RESCUE OF PERSON IN CUSTODY

CONTEMPT


97/98

97

PROCEDURE

DIRECT CONTEMPTSUMMARY

NO APPEAL BUT MAY QUESTION THRU CERTIORARI

EXECUTION UNLESS BOND FILED

INDIRECT CONTEMPTVERIFIED PETITION OR MOTU PROPRIO BY THE COURT

RESPONDENT TO COMMENT AND BE HEARD

PENALTIES IMPRISONMENT

FINE

COMPLETE RESTITUTION

APPEALABLE AS IN CRIMINAL CASES

EXECUTION UNLESS BOND FILED


98/98

GOOD LUCK!

Documents

2nd Version Remedial Law Bar Ops Lecture