Exercise questions for civpro

7/23/2019 Exercise questions for civpro

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CIVIL PROCEDUREProf. V. A. Avena1st Semester, AY 2015

PRE-MIDTERM EXAM EXERCISES(from AY 2014-15 down to AY 2011-2012)

1. A and B (a call center agent and a government clerk, respectively) executeda contract with their cousin, contractor X, for the construction of a building on a lot owned by them together with their rich Australian immigrant brother C.X put up a performance bond via Y Insurance Co. as surety, and also advanced thecosts for the first half of the P20M project, to guarantee the payment of whichA, B and C mortgaged the lot in favor of X. Due to defects in the building discovered not long after completion of the project, A convinced B that litigationis the only remedy, as X refused to do repairs, imputing the defects to sub-standards materials that resulted from changes in specifications that A and B insisted on to save on costs. C refused to join in the suit, chiding A for not considering his debt of gratitude for the P5M that X had earlier loaned to him.

a) State the step/s that A and B can, cannot, and/or need not, take under the circumstances?b) State the step/s that X can, cannot, and/or need not, take as a result?

c) State the step/s that Y can, cannot, and/or need not, take as a result?d) Assume that X files an answer but Y happens not to and is declared in default. Y's lawyer advises that Y has no reason to worry. Comment.

2. In A's P1M collection suit v. B based on their notarized loan contract, B alleged

his defense of full payment;

that A is a greedy, perjurious businessman who has filed the baseless suit unreasonably and unnecessarily and committed perjury by his false sworn allegationsin his complaint;

attached to his answer a pay to cashcheck for P1.5M which, on its dorsal side, shows deposit into the bank account of A (because it was mistakenly delivered toA by B's clerk instead of to B's other creditor C; and

set forth B's prayer for reimbursement by A of his (B's) mistaken overpayment of P.5M, which is a compulsory counterclaim because it arises out of, or is connected with, B's defense of payment.

Is/are there any step/s that A's lawyer should take?

3. When he went abroad as an OFW, Mr. X entrusted to his best friend Mr. B thetitle to his family home in Valenzuela, Bulacan (comprising land and a bungalow), only to hasten his return upon discovery of the truth of the rumor that Mr. B

had betrayed him by forging his (Xs) signature as vendor on a fictitious deed ofsale in favor of himself (B). Mr. X at once filed an accion reivindicatoria inthe RTC of Bulacan for recovery of his land the assessed value of which was P50,000.00 , likewise claiming actual damages of P.8M for his untimely return and the loss of his job, moral damages of P.4M, exemplary damages of P.3M, and attorneys fees of P.2M. B moved to dismiss on the ground of lack of jurisdiction. Is the motion meritorious?4. Van driver D delivered goods to the Hagonoy, Bulacan branch of Mr. O's mini-mart on January 31, 2014. Driving off and unknown to D, the swinging open reardoor of the van had hit the 5-year old son of O, causing head injuries. Mr. O w


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as unable to identify Mr. D because the vans broken plate number showed only twoletters and two numbers. When the police were finally able to decipher the platenumber five years after, O filed a complaint for damages against the driver, whom he named John Doe, and supplier S Merchandising owned by Manileo Mr. SM, and was allowed to serve summons by publication in Hagonoy.

When no answer was filed, Mr. O was able to obtain a judgment by default againstthe defendants, which was published in Hagonoy. When the sheriff began to execute judgment upon his Makati branch bank accounts, Mr. SM sought lawyer L. Whatmoves should L take, if any?

5. Mr. O brought an ejectment suit against Mr. T in the MTC for the latters failure to pay the purchase price of the house and lot pursuant to their contract.In turn, Mr. T (a) filed an action in the RTC for reformation of their contractunder the Civil Code, alleging that actually it is merely an equitable mortgage,that he (Mr. T) is only obliged to repay the loan that Mr. O gave him, that accordingly ownership never passed to Mr. O, and thus, until and unless Mr. O successfully forecloses the mortgage, he has no right to possession; and (b) moved todismiss the ejectment suit in the MTC for lack of jurisdiction over the subjectmatter, failure to state a cause of action, and/or lack of cause of action. Mr. O moved to dismiss the suit in the RTC on the ground of litis pendencia and forum-shopping, as well as moved for sanctions against Mr. T.

a) Rule on all the motions.

b) If you were the lawyer of Mr. T and the contract seems to you to be truly anequitable mortgage, would you or would you not have adopted his lawyers strategy?

6. Six years after its execution, Mr. C sued octagenarian businessman Mr. D forpayment of an IOU, received thru Mr. Ds accountant, which provided that it was payable upon Mr. Cs demand. When Mr. D died, his son Mr. S substituted for him.It was only after judgment was rendered that Mr. S requested examination and theNBI was able to determine that the IOU was a forgery. Mr. S moved to file an amended answer on the basis of section 5 of Rule 10, alleging lack of cause of action as affirmative defense. On the other hand, Mr. C likewise moved to amend his complaint to allege a verbal loan instead, claiming that even as it turns outthat Mr. Ds accountant had forged Mr. Ds signature, Mr. D nevertheless received t

he proceeds of the loan.

a) Would you have filed the same motion that Mr. S filed? Why or why not?b) If you were Mr. S, (assuming 10.5 was proper) would you have any grounds tooppose Mr. Ds amended complaint?

7. Because of constant battery from her husband, Mrs. A left the Pasig City conjugal residence with her 5-year old child and settled in her mothers home in Pampanga. Mr. A thus filed a petition for custody of the child with the Pasig CityMTC. Does Mrs. A have any ground for a motion to dismiss?

8. X, a Filipino naturalized as an American citizen, left a parcel of rural land in Argao, Cebu upon his death. In accordance with the rules on special procee

dings, his only son OS filed an affidavit with the Register of Deeds adjudicating the entire estate unto himself, together with a bond to answer for any claim which a possible creditor might filed within two years. After six months, IC surfaced as an illegitimate child and, claiming a half-share in the land set forthin OSaffidavit, filed an action with the Cebu RTC with branch in Argao, to recover the same.

X moved to dismiss, alleging that the assessed value of the land is only P50,000.00. IC opposed, saying the market value of the land is at least P350,000.00.Rule.


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9. Company A engaged Company B for the construction of a high-rise in Davao City. Co. B later sued Co. A for too much delay in Co. As staggered payments [CaseNo. 1]. In its defense, Co. A alleged that the payments were not due until Co.B completed with corresponding phases of construction. At the pre-trial, the parties arrived at an amicable settlement (B will speed up construction and waiveone months worth of dues for January while A will pay the balance covering February to June), which the court approved.

Thereafter A sued for rescission on the ground of too much delay in Bs construction and demanded damages for the delay as well as the return of overpayments forthe months of February to June. In its answer, B denied the factual allegationsin the complaint and, by way of affirmative defense, alleged that As claim for overpayments is already barred because it is a compulsory counterclaim that should have been set up by A in Case No. 1. Rule.

10. Upon the death of their father, Brothers A and B allowed a cousin Y to construct a small hut inside their family compound in Lipa City, Batangas. Later, C(another brother) returned from abroad; wanting to set up his own home in the compound, he requested Y to transfer his hut elsewhere. A and B then told C that, in actuality, Y was not a cousin but an illegitimate son of their father and therefore their half-brother. C was not moved and filed a case for unlawful detainer against Y in the Lipa City MTC. In his answer, Y alleged that he is entitled to one-half share of each legitimate sons aliquot inheritance and therefore ca

nnot just be unceremoniously ejected, and prayed for partition of the family home. C moved to dismiss this counterclaim of Y. Rule.

11. Vehicle C was traversing the national highway along Agoo, La Union northwards, followed by vehicle B, then vehicle A.B overtook C but in the process sideswiped oncoming vehicle D in the opposite lane. As a result, after the overtaking, C bumped the rear of B when the latter returned to their lane. Because of the sudden stop, A then bumped the rear of C.

On March 1, 2006, Bs owner (BO) filed a suit before the RTC in La Union (his place of residence), for damages against Cs owner (CO) and driver CD, both residentsof Makati City. [Case No.1]

CO filed a counterclaim for damages of P900 thousand, especially because of thegreat distance of the court from his residence.

On June 1, 2006, corporate owner of vehicle A (COA) sued CO for damages in the amount of P300 thousand before the MTC in Pampanga, the location of the branch office to which the vehicle and its driver were assigned. [Case No. 2]

CO filed an answer, saying it was BOs fault, together with a third-party complaint against BO for P550 thousand, to cover As claim, moral damages of P100 thousand, exemplary damages of P50 thousand, and attorneys fees of P100 thousand.

On February 1, 2007, CO won in Case No. 1.

On March 1, 2007, Ds insurer (DI) filed suit in the RTC, in Makati, the locationof its principal office, against BO and CO to recover what it had paid Ds owner (DO). [Case No. 3]

BO filed a cross-claim against CO, and CO filed a third-party complaint againstAO.

CD moved to dismiss Case No. 1 on the ground that Makati City would be the proper venue because it would be less oppressive for both defendants as against the l


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one plaintiff, considering the great distance of La Union.

BO moved to dismiss COs third-party complaint in Case No. 2 on the ground of litis pendencia and because it exceeds P300 thousand. Rule.

In Case No. 3, CO moved to dismiss BOs cross-claim in Case No. 3 on the ground ofres judicata because of the judgment in Case No. 1. In addition, CO moved thatBO be declared in contempt for failure to disclose the said Civil Case No. 1 ina certificate of non-forum shopping.

Further, in Case No. 3, A moved to dismiss COs third-party complaint.

Rule.

12. In Wee v. De Castro and in Quiombing v. CA, the other co-owners were declared to be non-indispensable parties, whereas in Arcelona and Orbeta, they were declared to be indispensable. Why the difference?

13. In respect of remedy(ies) where an indispensable party is not impleaded, what do we learn from Orbeta and Limos?

14. A filed a collection suit against B, then he (A) assigned to C whatever reliefs may be adjudged in his favor. B moved to dismiss for lack of cause of action. Rule.

15. When a member of a class suit intervenesto protect his individual interest,should he do so through a complaint-in-intervention or by amending the complaint?

16. Was Oposa v. Factoran a class suit?

17. Based on Oposa (July, 1993), should not the court in Joya v. PCGG (August,1993) declared the plaintiffs (and their unborn children) real parties-in-interest based on their beneficiaries' right of action(Feliciano, J., concurring opinion)?

18. Romblon resident M is sure that F, the world-famous idiosyncratic American

chess player now in self-exile in Iceland, is the father of UP College of Law freshman-Ipil dorm resident C, the daughter that she gave birth to following an affair that they had during F's two-year sojourn in Baguio city sixteen years before. So when news circulated that F would soon be holding a series of farewell chess matches in Baguio City, M hurriedly prepared to sue for C's acknowledgmentas well as support of at least P100,000/month. Two weeks before F's arrival M'slawyer Atty. ML filed the complaint in the MTC of Baguio City because he included allegations in support of a prayer for the attachment of F's favorite car which F always made sure he had in all his trips. In his haste, Atty. ML filed incourt an unsigned copy of the complaint instead of the signed original. Nevertheless the sheriff was able to deliver the summons and its necessary accompanyingdocuments to The Manor hotel. F however refused to receive any of it (specially when he saw the writ of attachment against his car which fortunately was still

being discharged from the Manila Port Area), so the sheriff left them with thehotel front desk clerk in charge of ensuring delivery to checked-in guests.

When after three weeks F did not file an answer, M moved to declare him in defalt. The trial court granted the motion, and M began testifying in court.

If F learns about this and engages Atty. A, what are the two opposite step/s tht Atty. A can take?

Why are they opposite?


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Even before the court could act upon the remedy/ies taken by Atty. A, Atty. ML iled a signed original amended complaint. Any effect?

Let us grant that the proceedings were in the RTC and ended in judgment by default in favor of M, which Atty. A was not able to remedy. Atty. ML now moves to enforce this judgment also against the cash award that, he discovered, accompanied the grand prize that F had won in Baguio. Atty. A opposes on the ground thatthis is not allowed under Rule 9.3.d. Rule.

19. A sued B for the return of his complete downpayment for the sale of a condominium unit,alleging in paragraph 5 of his complaint, among others, as follows: Despite demands, defendant refused to deliver the subject property, reasoning out that plaintiff failed to complete his downpayment. In response to this particular allegation, defendant alleged in his answer as follows: Defendant specifically denies theallegation in paragraph 5 of the complaint to the effect that he refused to deliver the subject property for the reason that plaintiff had not completed his downpayment, defendant having no knowledge or information sufficient to form a belief as to the truth thereof. Did B allege a specific denial?

20. The two loans that A procured from Bank B both contained cross-default andacceleration provisions, i.e., a default in the payment of Loan No. 1 will alsobe considered a default with respect to Loan No. 2 and vice-versa, by virtue of

which the entirety of both loans will be considered due and demandable. Loan No. 1was secured by an extrajudicial mortgage on A's Lot 1, Loan No. 2 by an extrajudicial mortgage on A's Lot 2. A defaulted on Loan No. 2, but requested release from mortgage of Lot No. 1 on the ground that Loan No. 1 has been paid but Bank B deliberately miscomputed the amounts due. When Bank B refused and proceededto apply for the sheriff's assistance for the auction sale, A filed a case against Bank B (Case No. 1), praying that it be enjoined from conducting the auctionsale, release Lot No.1 from the mortgage, and pay damages.

In its Answer, Bank B specifically denied the foregoing, alleging the total amount due based on the cross-default and acceleration clauses, and set up as counterclaim its agreed counsel's fee of P200,000.00 which it had to spend for the case. Soon after, Bank B proceeded with the auction sale, but because the total lo

an amounts due was P5M whereas Lots 1 & 2 were only sold for P3M, Bank B sued Afor the deficiency of P2M (Case No. 2). Choose the correct or best answer, as the case may be:

(i) Case No. 2 may be dismissed on the ground of litis pendentia because the parties and subject matter are the same as those in Case No. 1 and the issue of liability depends on the issue in Case No. 1, such that it should have been set up as a counterclaim in the latter.

(ii) Case No. 2 may not be dismissed on the ground of litis pendentia becausethe claim asserted therein may be set up in another suit, the same being in thenature of an after-acquired counterclaim.

(iii) Case No. 2 may be dismissed on the ground of litis pendentia because, even if the claimasserted therein is in the nature of an after-acquired counterclaim, the same should have been set up in a supplemental pleading before judgment in Case No. 1.

(iv) Case No. 2 may not be dismissed on the ground of litis pendentia because,even if the claim asserted therein is in the nature of an after-acquired counterclaim, the same need not be set up in a supplemental pleading before judgment inCase No. 1.


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21. In the early morning of January 31, 2009, while cruising on a mountain bikealong an Antipolo road, UP dorm-mates X and Y lost balance, fell sideways, andbumped Z who was tending to the garden by the gate of his house, but no injury was evident on Z's body. On January 31, 2010, the doctor was able to diagnose what injury Z suffered from the bicycle mishap. The next day, Z set forth all theforegoing facts in the complaint that he filed against X and Y before the MTC of Antipolo for damages due to the injury. But when his doctor advised him to immediately go abroad for treatment and therapy, Z felt he had no choice, and so filed a notice of dismissal the next day. Upon arrival, Z filed suit against X and Y, based on the same allegations, on February 1, 2013 before the MTC of Antipolo. The court dismissed the case motu proprio. Choose the correct or best answer, as the case may be:

The dismissal was:

(i) proper because motu proprio dismissal due to prescription, without notice and hearing, is allowed under Rule 9.1

(ii) proper because the action had already prescribed on the date when it was filed, the period for prescription having run from the date of occurrence of themishap

(iii) not proper because the action had not yet prescribed on the date when itwas filed, the period for prescription having run from the date of discovery of

the injury(iv) not proper because for the court to motu proprio dismiss under Rule 9.1, the fact of prescription must clearly appear from the evidence before it.

22. State whether true or false:

a) A real party-in-interest refers to an indispensable party.False. An indispensable party is just one kind of real part in interest. A necessary party is also a real party in ine

b) A derivative suit is a class suit.No.

c) Whenever the defending party fails to file his responsive pleading on time, the court should, upon motion of the complaining party, declare the former in default.

d) The court may consider service by ordinary mail complete upon actual receipt.

e) Except under Rule 17, the court may not dismiss a case motu proprio; there must be a motion to dismiss filed by the defending party.

f) When there is a compulsory counter-claim or cross-claim that is existing at the time a defending party files his answer, he must set it up in his answer, otherwise the same is deemed absolutely and forever waived and barred.

g) Notwithstanding Banco-Espanol Filipino v. Palanca, extra-territorial serviceof summons will be valid only if the summons and copy of the complaint were sentby registered mail to the last known address of the defendant.

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Exercise questions for civpro