Rem Bautista Q&As

8/11/2019 Rem Bautista Q&As

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II. JURISDICTION

Introductory/General Concepts

Q. Up to what stage of a civil action may the issue of jurisdiction beraised? (5%) [1997 Midterms IIIa]

A. In case of jurisdiction over the subject matter, the question may be invokedat any stage of the proceedings (even on appeal), but the issue of jurisdictionover the person of the defendant must be raised either in the motion todismiss or by way of an affirmative defense in the answer. (Amigo v CA, 253SCRA 382).

Q: P sues D in RTC-Manila to recover P100,000.00 and a parcel of landlocated in Manila. P is a Manila resident while D is a resident of QuezonCity. D moves to dismiss on the ground of lack of jurisdiction. Whatruling? (5%)

A: Motion denied. The claim for P100,000.00 may be properly joined with theclaim for recovery of real property, and RTC has jurisdiction over such moneyclaim since it has jurisdiction over the claim for recovery of real property.(Rule 2, Sec. 5[c])

Q: Suppose you are the counsel for D who is sued in the MTC forunlawful detainer and on a P50,000.00 promissory note (not related tothe lease subject of the action), what would be your proper and effectiveprocedural recourse? (5%)

A: I will move for severance of one cause of action because of misjoinder ofthe two causes of action, one - to wit, the unlawful detainer action - being aspecial civil action. (Rule 2, Secs. 5 [b] and 6)

Q: Last February 1990, T died in Quezon City, his place of residence,

leaving a will. May the RTC of Bulacan take cognizance of the petitionfor the probate of his will even if he left no property in Bulacan? (5%)

A: Yes, deceased's residence or location of his estate is not an element ofjurisdiction of the probate court but is merely one of venue. So, RTC-Bulacanmay take cognizance of the petition for probate if there is no objection to thevenue.


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Jurisdiction (subject matter) of the different levels of courts in civilcases

Q. P, a Manila resident, filed a collection action against C and D in RTC

Manila, alleging a total claim of P230,000 (P180.,000 for principal andP50,000 for attorney's fees) against C based on a promissory note and aclaim of P100,000 against D based on the unpaid purchase price ofgoods delivered. Both C and D moved to dismiss for lack of

jurisdiction. Rule on both motions to dismiss. (1996 Midterm Exam VII)

A. Both motions to dismiss granted. Jurisdiction pertains to the MTC becausethe total amount (exclusive of attorney's fees) of each cause of action isbelow the jurisdictional minimum of P200,000 for RTC jurisdiction. Joinder ofthe 2 causes of action against C and D is improper because there is a

misjoinder of parties, the two pleaded causes of action not arising out of thesame transaction or series of transaction and there being no question of lawor fact common to C and D, and joinder of causes of action is subject to therule on joinder of parties. (See Flores v. Mallare-Phillipps, 144 SCRA 377[2nd. Div., 1988])

Q. A, a Manila resident, bought a color TV set at the price of P15,000.00on 24 monthly installments from B Co., a Manila-based appliancecompany. The transaction was covered by a conditional sale contract.A defaulted in his monthly installment payments after having paid 5

such installments. In what court may B Co. bring the action to recoverthe TV set? (1993 Midterm Exam VIb)

A. No answer

Q. P corporation filed an action against D in the RTC to collect certainamounts of money amounting to P 2 million on its claim that D, whilepresident of P corporation and by using his position as such presidentand through fraud and misrepresentation, misappropriated and divertedto his personal use these corporate funds. D moved to dismiss the

complaint on the ground that it falls within the jurisdiction of theSecurities and Exchange Commission (SEC). Rule on the motion todismiss. (5%) [1995 Finals VIIIa]

A. Motion to dismiss granted. The complaint alleges acts committed by acorporate officer against the corporation, which amounts to fraud andmisrepresentation and thus detrimental to the interest of the public.Therefore, what was otherwise an ordinary action for a sum of money hasbeen converted to an inter-corporate controversy which calls for theadjudicative powers of the SEC under Sec 5 (a) of PD 902-A. (Alleje v CA,

240 SCRA 495).


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*** note amendment to PD 902-A in the Securities Regulation Code of 2000transferring adjudicative powers of the SEC over certain cases to the regularcourts.

Q. P, a senior Vice-President of a corporation, was dismissed forlack of confidence. Aggrieved, P sued the company for illegal dismissalwith prayer for back wages, reinstatement, damages and other benefitsbefore the Labor Arbiter. The company moved to dismiss on theground that the Labor Arbiter has no jurisdiction on the over the action.Rule on the motion. (5%) [1997 Midterms VIa]

A. Motion granted. Jurisdiction properly pertains to the Securities andExchange Commission because the dismissal of a corporate officer is acorporate act and/or an intra-corporate controversy. (Estrada v NLRC, GR

No. 106722, 04 October 1996)

*** note amendment to PD 902-A in the Securities Regulation Code of 2000transferring adjudicative powers of the SEC over certain cases to the regularcourts.

Q. What is the legal effect of the non-payment of the docket fees in full?(5%)

A. The court does not acquire jurisdiction over the subject matter in thecase. Therefore, the entire proceeding undertaken in the case are null andvoid. [Hodges v. CA185 SCRA 281 (1990)]

Q: P sues D in RTC-Manila to recover P100,000.00 and a parcel of landlocated in Manila. P is a Manila resident while D is a resident of QuezonCity. D moves to dismiss on the ground of lack of jurisdiction. Whatruling? (5%)

A: Motion denied. The claim for P100,000.00 may be properly joined with theclaim for recovery of real property, and RTC has jurisdiction over such moneyclaim since it has jurisdiction over the claim for recovery of real property.(Rule 2, Sec. 5[c])

Q. Action by P against D in the RTC for a sum of money wassought to be dismissed by D on the ground of prescription. The motionto dismiss was denied and D brought a special civil action for certiorariin 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 washeld and judgment rendered against D. On appeal from this judgment


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to the CA, D filed a motion to dismiss the complaint on the ground oflack of jurisdiction, alleging htat P had not paid the appropriatedocketing fees in the trial court. Rule on the motion to dismiss.

A. Motion to dismiss denied. Although the payment of the proper docketfees is a jurisdictional requirement, the TC may allow the plaintiff in an actionto pay these fees within a reasonable time before the expiry of the applicableprescriptive or reglementary period. But if the plaintiff fails to comply with thisrequirement, defendant should timely rise the issue of jurisdiction or else hewould be considered in estoppel. Here, D filed an answer and participated inthe proceedings before the TC. It was only after judgment was renderedagainst him that he raised the issue of jurisdiction. While the lack ofjurisdiction ... may be raised at any stage of an action, the party raising suchquestion may be estopped if he has actively taken part in the very

proceedings which he questions and he only objects to the court's jurisdictionbecause the judgment or decision subsequently rendered is adverse to him.(National Steel Corp. v CA)


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III. VENUE

Q: Last February 1990, T died in Quezon City, his place of residence,leaving a will. May the RTC of Bulacan take cognizance of the petition

for the probate of his will even if he left no property in Bulacan? (5%)

A: Yes, deceased's residence or location of his estate is not an element ofjurisdiction of the probate court but is merely one of venue. So, RTC-Bulacanmay take cognizance of the petition for probate if there is no objection to thevenue.

IV. PARTIES

Party in Interest

Q. A, owner of an improved city lot, leased the same to B. While Bis in possession, he was dispossessed by C. B, therefore, filed anaction against C to recover possession. C contested upon the groundthat B, not being the owner of the land, is not the real party in interest.Is C's contention correct? (5%)

A. If the action filed is for forcible entry wherein the issue is onlypossession de facto, B, as the lessee, has a right of action against C to

recover the same. B is a party in interest in the sense that he has a presentsubstantial interest in the land, the possession of which he had beendeprived.

Capacity to sue and be sued

Q. X Company, a corporation incorporated under the laws of Michigan,USA, entered into a "representative agreement" with Y Company, adomestic corporation, for the sale in the Philippines of X Company's

electronics products in consideration for a stipulated commission.After the agreement was in force for a year, X Company terminated itand then brought an action in the RTC-Makati to enjoin Y Company fromdealing in similar products as those of X's. Y Company moved todismiss the action on the ground that X Company, being a foreigncorporation not licensed to do business in the Philippines, has nocapacity to sue. Rule on the motion to dismiss. (10%) [1997 Midterms I]

A. X Company may well be said to be doing business in the Philippinesbecause of the extensiveness and regularity of the sales of its products in this

country whereby it made Y Company its mere agent in pursuit of its business.However, Y Company is estopped to challenge the personality of X after it


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has acknowledged the same by entering into a contract with it. This result isdictated by fair play. A person contracting with a foreign corporation cannottake advantage of the latter's non-compliance with the licensing requirementwhere such person has received the benefits of the contract.

(Communication Materials and Design Inc v CA, GR 102223, 22 August1996)

Joinder of parties

Q. D purchased a car from P, a car dealer, on installments and securedthe purchase price balance (covered by a promissory note) with achattel mortgage on the car. While the purchase price was not yet fullypaid and the mortgage on the car still existing, D sold the car to E. WithD 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 couldno longer be served with summons, P moved to drop D as defendant.Rule on P's motion to drop D. (10%) [1996 Midterms III]

A. The motion to drop D as defendant cannot be granted without dismissingthe complaint because D is an indispensable party. The replevin suit isanchored on P's alleged right to possess the car and which right in turn isfounded on the alleged default of D. If the case against D is dismissed, therewould be no remaining cause of action against E. P's right to possess the caris conditioned on D's actual default and this default cannot be established in

D's absence. (Servicewide Specialists Inc. v CA, GR No. 103301, 08December 1995.)

Substitution of parties

Q. Plaintiff filed a petition for mandamus to compel the then municipalmayor to issue to him the municipal license and permit to resumeoperations of his cockpit. Pending the action, the mayor was dismissedfrom office. After trial, the court issued the writ of mandamus and

adjudged defendant mayor liable for damages. In due course, thesheriff levied execution of the judgment for damages on defendantmayor's properties. Is the levy valid? (10%) [1997 Midterms IV]

A. The levy is void because the judgment is void and without any legal effect.The judgment is void because there was no substitution, pursuant to Rule 18,Section 3, of defendant mayor and the filing of a supplemental pleadingshowing that defendant mayor's successor had adopted or continued thedefendant mayor's policy to deny the cockpit license. (Galvez v CA, GR119193, 29 March 1996.)


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New/additional parties: impleader

Q. What is the effective recourse of the defendant where the plaintiff didnot implead an indispensable party? (1993 Midterm Exam IIb)

A. Defendant should move for an order directing the plaintiff to amend itscomplaint by impleading the indispensable party. Upon plaintiff's failure orrefusal to obey this order, the action should be dismissed. (Rule 17, Sec. 3;National Development Co. v. Court of Appeals, 211 SCRA 422 [1992]).

Q. Action by P against D in the RTC for a sum of money wherein Dimpleaded X as a third-party defendant on the claim that X is liable toplaintiff by way of subrogation to D's liability. Judgment was renderedordering D to pay P and X to indemnify D for this payment. X timely

appealed the judgment to the CA, but did not appeal and so P sued outa writ of execution against him after the lapse of the 15-day period for Dto appeal. Is the writ of execution valid? (5%) [1999 Midterm X]

A. Yes. The third-party complaint is independent of and distinct from thecomplaint, but is allowed in the original and principal case to avoid circuitry ofaction and unnecessary proliferation of lawsuits and to dispose expeditiouslyin one litigation the entire subject matter arising from one particular set offacts. An appeal by any party from such judgment does not inure to thebenefit of the other party who has not appealed nor can it be deemed to be

an appeal of such other party from the judgment against him. (Firestone Tire& Rubber Co. of the Phils. vs. Tempongko, 27SCRA 418 [1969])

New/additional parties: intervention

Q. P sues your client D, to recover possession of a parcel of land. Dtells you that his wife acquired this parcel of land from its former owner,X. Is there a way by which D may cause X to be impleaded? (1996Midterm Exam Ia)

A. Yes. D should have his wife intervene in the case and once admitted asintervenor, the wife should move to be allowed to a file a third-party complaintagainst X. D himself cannot file this third-party complaint against X becausehe has no privity with X. (Morada v. Caluag, 5 SCRA 1128 [1962])

Q P sued A, B, C and D to recover from each of them differentpieces of jewelry which were allegedly delivered to each of them as acommission agent of the plaintiff. The jewelries were delivered ondifferent dates. If you were counsel for all the defendants, what would

be your proper recourse?


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A. I would ask that all but one defendant be dropped from the complaintbecause the defendants are mis-joined. The plaintiff's claim against each ofthe defendants did not arise from the same transaction or series oftransactions. (Rule 3, sec 6). Each claim therefore is a separate cause of

action. (Gacula v Martinez, 88 Phil 142)

Q. What is defendant's recourse against a complaint which fails toinclude an indispensable party?

A. He should move for an order directing the plaintiff to amend hiscomplaint to include the indispensable party, and if plaintiff fails or refuses toobey this order, or the indispensable party cannot be sued, then defendantshould move to dismiss the complaint under Rule 17, sec 3. (See Corez v

Avila, 101 Phgil 205 [1957])


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VI. PLEADINGS

Q. An action on a promissory note by P against D Company, copy

of the note being attached to the complaint as an annex. D Companyanswered by denying liability and alleging that the person who signedthe note had no authority to do so, but this answer was not verified.May D Company prove its defense? (5%)

A. No. By failing to make a verified denial of the genuineness and dueexecution of the note, D Company had admitted that the party whosesignature appears thereon had indeed signed the note and that he hadauthority to sign it. [Imperial Textile Mills Inc. v. CA; 183 SCRA 584 (1990)]

Q. May the trial court extend the period for filing an answer after thisperiod had already expired? (5%)

A. Yes, indirectly. See R11S7(2), now R11S11.

Q: Suppose that a complaint is dismissed for failure to attach thereto asworn certification against forum-shopping, can the omission be curedby an amendment of the complaint? (5%)

A: No. (rule 7, Sec. 5, 2nd par.)

Q: When is a cross-claim permissive? (5%)

A: Perhaps never. (See Rule 6, sec. 8; Rule 9, Sec. 2)

Q: P sues D for P300,000.00 in RTC-Manila. Before D could answer, Pamends his complaint to allege an alternative cause of action forspecific performance. D moves to dismiss the complaint. Ruling?(10%)

A: Motion granted. P can amend the complaint once as a matter of right atany time before answer. The fact that the original complaint did not plead acause of action within the RTC's jurisdiction is of no moment. While theamendment has the effect of curing this defect, this is okay because no leaveof court is sought so that there is no conceptual contradiction as noaffirmative action is sought from the court. But while an action for specificperformance is within the RTC's jurisdiction since it is not capable ofpecuniary estimation, the alternative cause of action for P3000,000.00 putssuch an estimate and brings the case within the MTC's jurisdiction because ofthe amount involved. (See Cruz v. Tan, 87 Phil. 627 [1950])


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Complaint

Q. May P properly and correctly file a complaint in the RTC against D torecover P1 Million based on a promissory note and another P1 Million

based on tortious interference with contract, and for foreclosure of areal estate mortgage to secure a loan of P5 Million? (5%) [1999 MidtermXII]

A. While causes of action may be joined against a common opposing partywhether of the same nature or character or whether they arise out of thesame contract or relation or whether they are for sums of money, yet none ofthe causes of action must be a special civil action or action governed byspecial rules otherwise there would be a misjoinder of causes of action.Here, the cause of action for mortgage foreclosure is misjoined because it is

a special civil action. (Rule 2, Sec. 5)

Q. Can the court award the plaintiff damages prayed for in his complaintto be in an "amount as will be proved at the trial"? (10%) [1996 MidtermsII]

A. Generally, no. It is required for purposes of computation of the docketingfees payable, that the complaint specify the amount of damages being prayedfor not only in its body but also in its prayer. The court does not acquirejurisdiction over an unspecified claim for damages, except in respect to

damages arising after the filing of the complaint or similar pleading theamount of which damages need not be specified but to which the additionalfiling fee shall be a lien on the judgment. (Original Dev't. & Const. Corp. vCA, 202 SCRA 753).

Answer

Q. May lack of jurisdiction over the person be pleaded as an affirmativedefense and a preliminary hearing had thereon? (10%) [1996 Midterms

VIII]

A. Yes. Any ground for dismissal under Rule 16, except improper venue,may be pleaded as an affirmative defense and a preliminary hearing hadthereon. A defendant is allowed to put up his own defenses alternatively oreven hypothetically. Defenses and objections not pleaded either in a motionto dismiss or an answer, except for the failure to state a cause of action, aredeemed waived. Therefore, the defendant is enjoined to set up, along withhis objections to the court's jurisdiction over his person, all other possibledefenses. (La Naval Drug Corp. v CA, 236 SCRA 78).


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Counterclaim and Cross-Claim

Q. L sued C to annul a deed of sale of a lot and for L to be declared theowner thereof. Judgment went to C, and this judgment became final.

Thereafter, C filed an action against L, A and B for damages for the useand occupancy of the same lot, A and B being L's transferees of thehouse built on the lot, this house having been transferred by L to A andB even before the filing of the annulment action. L, A and B moved todismiss C's complaint on the ground that it is barred by the judgment inthe first action. Resolve the motion to dismiss. (1994 Midterm Exam IX)

A. Motion to dismiss granted. The scone motion is barred by the "compulsorycounterclaim rule" (Rule (, Section 4) because the complaint for damages isnecessarily connected with the transaction subject matter of the first action.

Had the same been annulled in the first action then C would have no right tocollect rents from the occupants of the lot and house, while if the courtsustained the validity of the same (as it did) then C would have had suchright. The addition of A and B as additional defendants does not detract formthe res judicata effect of the judgment in the first case because these partiesshould have been impleaded by C on his compulsory counterclaim in the firstauction. See Carpena v. Manalo, 1 SCAR 1060 (1981) and my annotation in3 PHILAJUR 588 at 601-602 (1978).

Q. In an action in the RTC by the lessee against the lessor to fix a period

for his lease, may the RTC entertain the defendant lessor's counterclaimfor the ejectment of plaintiff lessee on the ground of the expiry of thestipulated term in the lease contract? (5%) [1999 Midterm XI]

A. No, this is not a compulsory counterclaim because it is not within thejurisdiction of the RTC as to its nature. (Rule 6, Sec. 7)

Q. Action on a fire policy against an insurance company which issued it.The defendant insurer filed a third-party complaint against a re-insurer

which set up in his answer the defense alleged by the defendant insurerthat the loss was caused by the willful act of connivance of the plaintiffinsured. May the third-party defendant re-insurer counterclaim againstthe plaintiff? [1999 UP Barops III]

A. Yes, provided that the counterclaim be in respect to the plaintiff's claimagainst the third-party plaintiff. (Rule 6, sec. 13)


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Q. The MTC dismissed, on defendant's motion, a complaint for unlawfuldetainer grounded on termination of a month-to-month lease, for lack of

jurisdiction over the subject matter due to lack of prior demand tovacate, and awarded in favor of the defendant the amount of P 5,000.00

as attorney's fees. Is this MTC decision vulnerable to attack oncertiorari? (10%) [1996 Midterms VII]

A. Yes. Since the MTC had no jurisdiction over the principal action forunlawful detainer, then it had no jurisdiction over the compulsorycounterclaim for attorney's fees either. Defendant's claim for attorney's feesis in the nature of a compulsory counterclaim, and a compulsory counterclaimcannot remain pending for independent adjudication by the court. Acompulsory counterclaim is merely auxiliary to the proceeding in the originalsuit and derives its jurisdictional support from this original suit. Besides, it

was defendant himself who caused the dismissal of his counterclaim bymoving for the dismissal of the complaint. (Dalisay v Marasigan, GR No.115088, 20 June 1996.

Amended and Supplemental Pleadings

Q. A sued B in RTC-Manila for breach of contract. B filed a motion todismiss on the ground that the complaint fails to state a cause of action.Before the motion to dismiss was resolved, A filed an amended

complaint. The RTC did not admit amended complaint, ruling that Afailed to obtain leave of court. A's motion for reconsideration wasdenied; so, he filed a petition for certiorari in the Court of Appeals. Bmoves to dismiss the petition contending that the CA has no

jurisdiction to issue certiorari, since only a question of law is involved.Is the RTC judge correct? Does the CA have jurisdiction to issuecertiorari? Decide. (1993 Midterm Exam V)

A. No answer

Q. Husband filed a complaint in the RTC against his wife praying forcustody of their children and that their support be determined, thecomplaint alleging that defendant-wife attempted to kill plaintiff-husband by kicking him twice on his genital. After answer, plaintiff wasallowed by the trial court to amend his complaint by alleging thatdefendant attempted to kill him by placing poison on his food andpraying for legal separation. Was the amendment properly allowed?(10%) [1996 Midterms IV]

A. 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 thereliefs sought are different, as the original complaint prays for custody and


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support while the amended complaint prays for legal separation, whatdetermines the nature and character of an action is not the prayer but theessential basic allegations of fact as set forth in the complaint. There is nosubstantial alteration of the cause of action because defendant is not required

to answer for a liability or legal obligation wholly different from that which wasstated in the original complaint. Even granting that the causes of actionunder the original and amended complains are different, still the amendedcomplaint should be admitted because such causes of action, as legalseparation, custody and support arose from the marital relationship betweenthe parties, and a party is allowed to state in one pleading as many causes ofaction as may arise out of the same relation between the parties. (Anastaciov Anastacio, 92 OG 2746.)

Formal Requirement Of Pleadings

Q. May a complaint which had been dismissed for failure to attach acertification against forum shopping be re-filed? (5%) [2000 Finals III]

A. Yes, unless the dismissal order states that it is with prejudice. (Rule 7,Sec 5, 2nd par)

Detail in pleading

Q. P company, a foreign insurance company, sued in the RTC-Manilaand alleged that it is duly authorized to do business in the Philippines,but defendant in his answer denied this allegation as to P's capacity tosue for lack of knowledge or information. What is the effect ofdefendant's denial? [1999 UP Barops X]

A. None. The denial is ineffective for being a general denial and therefore isinadequate to attack p's capacity to sue. (Rule 8, Sec. 4, 2nd sent.)

Filing and service of pleadings & other papers

Q. In an action by P against D in the RTC for recovery of possessionand damages, D filed an answer with counterclaims but furnishedcounsel for P a copy of this answer by registered mail and his answerdid not contain any written explanation as to why service was not madepersonally upon P. So, P filed a motion to expunge the answer and todeclare D in default on the ground that D did not observe the mandaterequiring personal service or an explanation of its absence. Rule on D'smotion. [1999 UP Barops VI]

A. Motion granted. Under Sec. 11, Rule 13 of the 1997 Rules of CivilProcedure, personal service and filing is the general rule, and resort to other


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modes of service and filing, the exception. Therefore, whenever personalservice or filing is practicable, in light of the circumstances of time, place andperson, personal service or filing is mandatory. Only when personal serviceor filing is not practicable may resort to other modes be had, which must then

be accompanied by a written explanation as to why personal service was notpracticable. The absence of such explanation is a violation of the rule andmay be cause to consider the paper as not filed. (Solar Team Entertainment,Inc. vs. Ricafort, G.R. No. 132007, August 5, 1998 [1st Div])

Q. In an unlawful detainer suit by P against D, the MTC Malolosrendered judgment ordering D to vacate the premises and to surrendertheir possession to P. Thereafter, a writ of execution of the judgmentand a writ of demolition, were issued. During the grace period allowedD under the writ of demolition, D filed a separate action in RTC-Bulacan

against P and the provincial sheriff for specific performance on theground that D is entitled to receive the value of the improvements onthe lot subject of the ejectment case because he was a builder in goodfaith. The RTC Bulacan issued a TRO and then later a preliminaryinjunction, enjoining the enforcement of MTC Malolos' writ of executionand order of demolition. Did the RTC Malolos act correctly? (10%)

A. No. This claim for compensation for improvements is a compulsorycounterclaim under R9S4 and therefore, D should have raised it in theejectment case even only alternatively because it is inconsistent with his

claim of ownership. [Cojuanco v. Villegas 184 SCRA 374 (1990)]

Q. May a court grant relief greater than that asked for in the prayer ofthe litigant's pleadings? (5%)

A. See R9S3.

Q In an action in the RTC by the lessee against the lessor to fix a periodfor his lease, may the RTC entertain the defendant lessor's counterclaimfor the ejectment of plaintiff lessee on the ground of the expiry of the

stipulated term in the lease contract.

A. No, this is not a compulsory counterclaim because it is not within thejurisdiction of the RTC as to its nature. (rule 6, sec 7)

Q. May P properly and correctly file a complaint in the RTC against D torecover P1 million based on a promissory note and another P1 millionbased on tortious interference with contract, and for foreclosure of areal estate mortgage to secure a loan of P5 million?


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A. While causes of action may be joined against a common opposing partywhether of the same nature or character or whether they arise out of thesame contact or relation or whether they are for sums of money, yet none ofthe causes of action must be a special civil action or action governed by

speciai rules otherwise, there would be a misjoinder of causes of action.Here, the cause of action for mortgage foreclosure is misjoined because it isa special civil action. (Rule 2, sec 5).

VII. MOTIONS

VIII. OBJECTIONS TO PLEADINGS

Q. P sued D and E for reconveyance, with damages, of a parcel of land. Afterfiling his answer, E served on P written interrogatories. Despite the lapse of1/2 years, the written interrogatories remained unanswered. So on Es MTD,the court issued an order directing P to answer the written interrogatorieswithin 10 days from receipt of the order. This order having gone unheeded,the court issued another order dismissing the complaint against E. After theorder of dismissal had become final, P filed a motion for admission ofamended complaint in which E is again impleaded as a defendant on thesame cause of action alleged in the original complain, plus and additional

cause of action impugning the order of dismissal as being null and void forallegedly having been obtained through fraud. E moves to dismiss amendedcomplaint on the ground of res judicata. Rule on Es MTD. (10%)

A. MTD granted. Dismissal was in effect for failure to prosecute andtherefore has the effect of an adjudication on the merits under R17S3. Also,it is arguable that the dismissal is under R29S5 and therefore an adjudicationon the merits. The added cause of action in the amended complaint isimproper because such an alleged cause of action can be raised only in amotion for new trial or in a R38 petition for relief. [See Arellano v. CFI of

Sorsogon; 65 SCRA 46 (1975)]

Motion To Dismiss: Want Of Jurisdiction

Q. P sued D in the RTC to recover the sum of P20,000.00 plus interest. Danswered alleging payment by set-off. After pre-trial but before thecase could actually be tried, D filed a motion to dismiss on the groundthat the RTC has no jurisdiction over the case. Instead of filing anopposition to D's motion to dismiss, P filed a motion for leave to amendhis complaint by including an allegation of a cause of action for

P5,000.00 attorney's fees. If you were the judge, how would you resolve


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D's motion to dismiss and P's motion for admission of his amendedcomplaint? (1993 Midterm Exam I)

A. I would grant D's motion to dismiss and deny P's motion to admit amended

complaint. (a) A motion to dismiss on the ground of lack of jurisdiction overthe subject matter may be filed at any stage of the action. (See Rule 9, Sec.2); (b) D already having answered, P must have to ask for leave of court toamend his complaint (Rule 10, Secs. 2 and 3). While P's proposedamendment may not alter his cause of action, still the amendment is notallowable because it would have the effect of conferring jurisdiction upon thecourt. Since the amount alleged in the original complaint does not exceedP20,000.00 excluding interest, the RTC did not acquire jurisdiction over thecase, and so the RTC has neither the power nor the jurisdiction to act on themotion for the admission of the amended complaint, much less to allow such

amendment, since the court must first acquire jurisdiction over the case inorder to act thereon. (see Rosario v. Carangdang, 96 Phil. 845 [1955]).

*** take note of the change in jurisdictional amounts

Q: Action by P against D in the RTC for damages allegedly suffered by Pwhile a paying passenger in a vehicle owned and driven by D. Duringthe pre-trial, the parties entered into such a comprehensive stipulationof facts that the judge was moved to decide the case on summary

judgment. Proper? (5%)

A: No. A hearing, on motion duly noticed, is required by Rule 34. (Based onGodala v. Cruz, 88 O.G. 7899 [CA; 1989]).

Motion To Dismiss: Litis Pendentia

Q. P filed a complaint in the housing and Land Use Regulatory Board(HLURB) to compel D to release and deliver a condominium certificateof title and to desist from collecting fees for community benefit and to

release all such fees collected and for damages. During the pendencyof the HLURB case, D filed a complaint against P in the RTC for thecollection of fees for administrative and maintenance expenses,common comfort, security and sanitation. P then filed a motion todismiss the RTC case on the ground of pendency of a similar casebefore the HLURB. Resolve the motion to dismiss. (1993 Midterm ExamIIa)

A. Motion to dismiss denied. Litis pendentia as a ground for dismissal of anaction refers to another pending action in a court of justice, excluding an

administrative agency. (Puzon Industrial Dev't. Corp. v. Magtolis, CA 89 O.G.p. 2487 [1989]).


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Q. A is the owner of a parcel of land pending registration in the RTC ofRizal. He permitted B, a family friend, to construct a small house on the

land and to live therein for a period of two years only. The two-yearperiod expired on 1 may 1994, but B failed and refused to vacate theland. Hence, on 15 June 1994, A filed an action against in the RTC ofRizal for the recovery of possession of the land. B filed a motion todismiss the case on the ground that there is a pending land registrationcase involving the said property. Is the motion well founded? (1994Midterm Exam Ia)

A. No lis pendens because no identity of causes of action or rights assertedand reliefs prayed for, so that judgment which may be rendered in one case

would not necessarily result in res judicata in the other case. An action forrecovery of possession is distinct and different from an action for recovery oftitle or ownership. Moreover, an RTC, acting as a land registration court, hasa limited and special jurisdiction confined to the determination of the legalityand propriety of the issue of title. It has no power to entertain issues ofrightful possession and claims for damages emanating from ownership.(Medina and Bernal v. Valdellon, 63 SCRA 276 [1975]).

Q. A lessee filed an action in the RTC against his lessor praying for a

decree fixing the period of his lease. Before pleading to the complaint,the lessor filed his own complaint for unlawful detainer in the MTCseeking the lessee's ejectment from the premises on the ground ofexpiry of the term of the lease contract. The lessee moved to dismissthe unlawful detainer complaint on the ground of litis pendentia. Ruleon the motion. [1996 Finals II]

A. Motion to dismiss denied. Both cases involve the common issue of thelessee's right to possession of the premises, and this issue is better resolvedin an unlawful detainer action. What, then, ought to be dismissed is the RTC

action and not the unlawful detainer case. The fact that the unlawful detaineraction was filed later that the RTC action is of no moment, because section1(e) of Rule 16 requires only another pending action - not a prior pendingaction. (Teodoro vs. Mirasol, 99 Phil. 150 [1956]).

Q. P filed a complaint in the RTC-Isabela against D for the recovery ofan alleged overpayment for a rice thresher. Later, but before thesummons in the Isabela case could be served on D, D filed in RTC-Manila an action against P for collection of the alleged balance on the

purchase price of the same rice thresher. P moved to dismiss the


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Manila case on the ground of litis pendentia. Rule on the motion. [1996Finals III]

A. Motion to dismiss granted. All the requisites for litis pendentia are present.

The Isabela action was already a pending action at the time of the filing of theManila action even though the summons had not yet been served. Reason:A civil action is commenced by the mere filing of a complaint. (Rule 2, sec. 6;Salacup vs. Maddela, Jr., 91 SCRA 275 [1971]).

Motion To Dismiss: Res Judicata

Q. Discreet Bank extrajudicially foreclosed P's real estate mortgage anditself purchased the property at the foreclosure sale. After the

expiration of the one-year redemption period without any redemptionbeing effected, Discreet Bank filed with the Registry of Deeds anaffidavit of consolidation of ownership and, consequently, was issued anew TCT. Thereafter, Discreet Bank filed a petition for the issuance of awrit of possession with the RTC and this petition, docketed in the landregistration case, was opposed by P and, after a full-dress hearing, theRTC granted the petition and ordered the issuance of a writ ofpossession. After the decision in this case became final, P filed acomplaint against Discreet Bank to set aside the sale of the mortgagedproperty and cancel the writ of possession, P reiterating the grounds

raised in the opposition to the petition for the issuance of writ ofpossession. Discreet Bank moved to dismiss this caser on the groundof res judicata, but this motion was opposed by P on the ground thatthe decision in the writ-of-possession case cannot constitute res

judicata because P could not present his objections in that proceeding,the issuance of a writ of possession being purely ministerial with thecourt and the present action being the correct one to attack theforeclosure sale. The court dismissed this second case, not on theground of res judicata but for lack of jurisdiction, the court reasoningthat P's attack at the foreclosure sale tantamounts to an attack at a final

order of the RTC and therefore is within the exclusive jurisdiction of theCA. Several months later, P filed another complaint against DiscreetBank for the annulment of the foreclosure sale and reconveyance of themortgaged property. As before, Discreet Bank moved to dismiss on theground of res judicata, arguing that the issues raised in this new casehad been resolved in the writ-of-possession case and in the secondcase foe the annulment of the foreclosure sale, but this motion wasopposed by P on the ground that the dismissal of the second case wasnot an adjudication on the merits, the dismissal being for lack of

jurisdiction and therefore cannot constitute res judicata.


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(a) Was the ruling on the first motion to dismiss correct? (1993 MidtermExam IIIa)

A. While the hearing in the writ-of-possession case was supposed to be

summary , a full-dress hearing was actually conducted and P submittedhimself to it. P cannot now therefore be heard to challenge the jurisdiction ofthe court and to escape or repudiate the effects of its judgment. So, the orderin the writ-of-possession case bars the second case on res judicata grounds.

(b) Rule on the motion to dismiss the third case. (1993 Midterm ExamIIIb)

A. In dismissing the second case for lack of jurisdiction, the court recognizedthe order of dismissal in the writ-of-possession case as a final one which it

could not annul, since the authority to annul such orders pertains to the CAonly. This was, by itself, an adjudication on the merits of P's claim because itdeclared him no longer entitled to the right upon which his claim is based. Ajudgment is deemed to be rendered upon the merits when it amounts to adeclaration of the law as to the respective rights and duties of the parties,based upon the ultimate facts or state of facts disclosed by the pleadings andevidence, and upon which the right of recovery depends, irrespective offormal, technical or dilatory objections or contentions. (De Ramos v. CA, 213SCRA 207 [1992])

Q. Levy of execution of money judgment in Civil Case No. 12345 wasmade on property of D and at the execution sale, this property was soldto plaintiff P. Title was consolidated in P after the lapse of theredemption period. Citing what is alleged to be equitable grounds,however, D filed a motion in the said Civil Case No. 12345 that he beallowed to redeem the property or his mother to purchase it; this motionwas denied. D then filed another action in the RTC, Civil Case No.67890, to recover the same property on the ground of promissoryestoppel. If you were the counsel of P, what step would you take in CivilCase No. 67890? (1994 Midterm Exam VII)

A. I would move to dismiss Civil Case No. 67890 on the ground of resjudicata. Both cases involve the same cause of action, the parties are thesame, and the addition of D's mother in Civil Case No. 12345 does notmilitate against the identity of parties between the two cases because themother represents the same interest as D. (Santos v. CA, 226 SCRA 630)

Q. P sued D in the MTC for ejectment on the ground of non-payment ofrentals. After trial on the merits, judgment was rendered dismissing the

complaint upon the finding that D has been paying his rentals on time.Thereafter, P demanded an increase in D's rentals, and upon D's failure


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to pay the increased rentals, P promptly filed a complaint against D inthe RTC praying for his eviction and for damages; the RTC dismissedthis complaint for lack of jurisdiction. With the RTC dismissal, P filedan action for unlawful detainer against D in the MTYC based on the

same allegations as his complaint in the RTC. D now moves to dismissthis second unlawful detainer complaint on the ground that it is barredby prior judgment. Rule on the motion to dismiss. (1994 Midterm ExamVIIIb)

A. Motion to dismiss denied. The second ejectment action is not barred bythe decision in the first ejectment case; no identity of causes of actionbecause the ground for ejectment in the second action is for non-payment ofdifferent rentals. Nor is the RTC judgment a bar because it is not on themerits. Viray v. Marinas, 49 SCRA 44 (1973).

Q. H, husband, filed an action against his wife, W, to have their marriagedeclared void due to the latter's alleged psychological incapacity tocontract marriage. After trial, the action was dismissed. Then, H filedanother action against W to have the same marriage declared void foralleged absence of a marriage license. Can the second action prosperover timely opposition? (5%) [2000 Finals IV]

A. Depends on whether the ground urged by H in the second action wasalready known to and could have been raised by H in the first action. (See

Rule 39, Sec. 47 [b]): "or as to any matter that could have been raised inrelation thereto.")

Q. X Bus Company purchased 10 buses from Y Motor Co. covered withpromissory notes and deeds of chattel mortgage. Then, Y assignedthese notes and deeds of chattel mortgage to A Bank and thensubsequently assigned the same notes and chattel mortgages to BFinance Co. Then, when X defaulted on the notes, Y, A and Bdemanded payment. In view of their conflicting claims against it, X filedin 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 Xand Y praying that Y be declared liable to pay B's claim against X in theevent that B is not able to recover thereon against X. Defendantsmoved to dismiss the replevin complaint on the ground of the pendencyof the interpleader action. Rule on the motion to dismiss. (5%) [1999Midterm IX]

A. Motion to dismiss granted. There is identity of parties between theinterpleader case and replevin case. In the interpleader case, the plaintiff is

X and the defendants are Y, A and B, whereas in the replevin case, theplaintiff is B and the defendants are X and Y. In both cases therefore, B, X


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and Y are parties with the addition of A, but this addition does not retract fromthe requisite identity. In both cases, the rights spring from the deeds ofassignment executed by Y in favor of A and B, covering the same debts of Xowing 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 replevincase; if judgment in the interpleader case is that the assignment to A wouldprevail over the assignment to B, such judgment would be binding on thereplevin case and undercut B's cause of action in the replevin case. (SanpiroFinance Corp. vs. IAC, 220 SCRA___ [3rd Div., 1993])

Q. In the belief that the decedent died intestate, X, Y and Z, his nephews,initiated in the RTC an intestate proceeding wherein they obtained anorder approving their extrajudicial partition of the estate. But later, Xfiled a motion to annul the order of approval on the ground that a will of

the decedent had been discovered and therein sought its probate. Theprobate court denied X's motion on its finding that the alleged will hadbeen destroyed and revoked by the decedent. Two months later, X fileda petition in another RTC for probate of the alleged will, but Y and Zmoved to dismiss the petition on the ground that it is barred by the

judgment of the intestate court finding the alleged will to have beendestroyed and revoked. Rule on the motion to dismiss. (10%) [1995Finals I]

A. Motion to dismiss denied. The intestate court had no jurisdiction to

entertain the probate of the alleged will in the intestate proceeding andtherefore it could not have made a finding that the alleged will had beendestroyed and revoked (Casiano v Maloto, 79 SCRA). So, the intestate courtnot having jurisdiction to make this finding, the petition for probate of thealleged will cannot possibly be barred by res judicata.

Q. Enumerate all the ways by which a civil case in our courts may beterminated, with binding and res judicata effect, without a full-dressevidentiary trial where the parties are enabled to present their

respective testimonial and other evidence. (10%) [1997 Midterms X]

A.1. judgment on the pleadings2. summary judgment3. dismissal on motion of the defendant4. voluntary dismissal by the plaintiff5. dismissal for plaintiff's failure to prosecute6. judgment by default7. judgment on confession or on compromise

8. judgment on a complete stipulation of facts.


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Q. P sued A and B to recover a parcel of land. Judgment went for A andB. Then, A sued B to recover the same parcel. Is this second actionbarred by res judicata? (5%) [1997 Midterms VIIIa]

A. It depends. If A's claim against B was already existing at the time of thefirst action and was a compulsory counterclaim in that case, then the secondaction is barred under Rule 9, Sec. 4. Otherwise, there is no estoppelbecause A and B were no adverse parties in the first case and their relativerights and liabilities as co-defendants inter-se were not brought in issue.(Valdez v Mendoza, 89 Phil. 83)

Motion To Dismiss: Improper Venue

Q. P, a resident of Manila, sued D, also a resident of Manila, in the RTC-QC to collect P500,000 based on a promissory note. The RTC-QCdismissed the action motu proprio on the ground that the parties, beingboth residents of Manila, it has no jurisdiction over the case. Is thedismissal correct? (5%) [1999 Midterm XV]

A. No, the matter of residence is one of venue only and not of jurisdiction.The court cannot motu proprio dismiss an action for improper venue, amotion being required for that purpose. Venue touches more upon the

convenience of the parties rather than upon the substance or merits of thecase; it involves no more and no less than a personal privilege which may belost by failure to assert it seasonably. (See Guzman vs. Batario, 95 O.G. pp.3477 [CA; 1994])

Q. May a court grant relief greater than that ask for in the prayer ofthe litigants pleading?

A. See R9S3.

In an action in the RTC by the lessee against the lessor to fix a period for hislease, may the RTC entlthough action is for annulment of the contract, theprime objective is to recover the land. Venue should be Bulacan. (Gavierozv. Sanchez, 94 Phil 9760) R4.1

Motion to dismiss: want of jurisdiction

Q. Action by P against D in the RTC for a sum of money was sought tobe dismissed by D on the ground of prescription. The motion to

dismiss was denied and D brought a special civil action for certiorari inthe CA against the order of denial of his motion to dismiss. The CA


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dismissed the petition. Then, D filed his answer, after which trial washeld and judgment rendered against D. On appeal from this judgmentto the CA, D filed a Motion to Dismiss the complaint on the ground oflack of jurisdiction, alleging that P had not paid the appropriate docket

fees in the trial court. Rule on the motion to dismiss. (5%) [1999Midterm V]

A. Motion to dismiss denied. Although the payment of the proper docket feesis a jurisdictional requirement, the TC may allow the plaintiff in an action topay these fees within a reasonable time before the expiry of the applicableprescriptive or reglementary period. But if the plaintiff fails to comply with thisrequirement, defendant should timely raise the issue of jurisdiction or else hewould be considered in estoppel. Here, D filed an answer and participated inthe proceedings before the TC. It was only after judgment was rendered

against him that he raised the issue on jurisdiction. While the lack ofjurisdiction ___________________may be raised at any stage of an action,the party raising such question may be estopped if he has actively taken partin the very proceedings which he questions and he only objects to the court'sjurisdiction because the judgment or decision consequently rendered isadverse to him. (National Steel Corp.vs. CA, G.R. No. 123215, Feb. 2, 1999[2nd Div.])

Motion To Dismiss: Insufficient Allegations

Q. The complaint simply alleges that D is legally liable to P for damagesin a named amount. D moves to dismiss this complaint for failure tostate a cause of action. Resolve the motion to dismiss. [1999 UPBarops VIII]

A. Granted. The operative or constitutive facts making up the pleaded causeof action are not stated. The only matters pleaded are conclusions of law.

Motion To Dismiss: Non-Compliance With A Condition Precedent ForFiling

Q. W sued her husband (H) and X Company to annul a transfer of herparaphernal lot by H to X Company on the claim that the transfer wasultra vires a power of attorney given by W to H. H moved to dismiss onthe ground that her complaint did not allege prior efforts towards acompromise. Resolve the motion to dismiss. [1996 Finals I]

A. Motion to dismiss denied. The requirement of prior efforts to a

compromise does not apply where there is a stranger to the action.(Magbaleta vs. Gonong, 76 SCRA 511 [1977]).


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Motion For Judgment On The PleadingsMotion For Summary Judgment

Q. Where in an action by P against D to recover P3 Million damages forphysical injuries allegedly suffered in a vehicular collision, D files ananswer which contains nothing but general denials, can P have

judgment on the pleadings or summary judgment? (5%) [1999 MidtermXVIII]

A. No judgment on the pleadings because of failure to make a specific denialdoes not amount to an admission of the averments as to the amount ofunliquidated damages (Rule 8, Sec. 11) and therefore there is a triable issue

of fact (Rule 34, Sec. 1). But summary judgment may be granted if, afternotice and hearing, the court should find, on the basis of the pleadings,supporting affidavits, depositions and admissions on file that, except as to theamount of damages, there is no genuine issue as to any material fact andthat the moving party is entitled to a judgment as a matter of law. (Rule 35,Sec. 3)

Q. What is plaintiff's best procedural recourse against an answer whichpleads no more than negative pregnants? (5%) [1997 Midterms IXa]

A. Move for judgment on the pleadings.

Q. P sued D to quiet title to a parcel of land claiming to be the owner ofthe land and to have inherited it from his father. On the other hand, Danswered by asserting ownership over the same land in himself byclaiming to have inherited it from his own father, the alleged owner. Pfiled a reply to which was attached a document entitled"Acknowledgment of Ownership" duly signed by D's father andconceding ownership of the land to P's father. After pre-trial, the courtrendered summary judgment in P's favor on the ground that the

genuineness and due execution of the document annexed to P's replywas not denied by D under oath. Is the summary judgment correct?(1996 Midterm Exam VIII)

A. No. In the first place, there was no motion for summary judgment. In thesecond place, the issue of ownership is a genuine factual issue which has tobe resolved by a trial on the merits. There is no admission of thegenuineness and due execution of the Acknowledgement of Ownershipbecause this document was signed by D's father and not by D himself and sothere was no need for D to deny it under oath. (Cadirao v. Estenzo, 132

SCRA 83 [Second Division, 1984])


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Motion To Dismiss: Want Of Jurisdiction

Q. P sued D in the RTC to recover the sum of P20,000.00 plus interest. Danswered alleging payment by set-off. After pre-trial but before the

case could actually be tried, D filed a motion to dismiss on the groundthat the RTC has no jurisdiction over the case. Instead of filing anopposition to D's motion to dismiss, P filed a motion for leave to amendhis complaint by including an allegation of a cause of action forP5,000.00 attorney's fees. If you were the judge, how would you resolveD's motion to dismiss and P's motion for admission of his amendedcomplaint? (1993 Midterm Exam I)

A. I would grant D's motion to dismiss and deny P's motion to admit amendedcomplaint. (a) A motion to dismiss on the ground of lack of jurisdiction over

the subject matter may be filed at any stage of the action. (See Rule 9, Sec.2); (b) D already having answered, P must have to ask for leave of court toamend his complaint (Rule 10, Secs. 2 and 3). While P's proposedamendment may not alter his cause of action, still the amendment is notallowable because it would have the effect of conferring jurisdiction upon thecourt. Since the amount alleged in the original complaint does not exceedP20,000.00 excluding interest, the RTC did not acquire jurisdiction over thecase, and so the RTC has neither the power nor the jurisdiction to act on themotion for the admission of the amended complaint, much less to allow suchamendment, since the court must first acquire jurisdiction over the case in

order to act thereon. (see Rosario v. Carangdang, 96 Phil. 845 [1955]).

*** take note of the change in jurisdictional amounts

Q: Action by P against D in the RTC for damages allegedly suffered by Pwhile a paying passenger in a vehicle owned and driven by D. Duringthe pre-trial, the parties entered into such a comprehensive stipulationof facts that the judge was moved to decide the case on summary

judgment. Proper? (5%)

A: No. A hearing, on motion duly noticed, is required by Rule 34. (Based onGodala v. Cruz, 88 O.G. 7899 [CA; 1989]).

Q. In an action by P against D in the RTC for sum of money, Pobtained a writ of preliminary attachment on defendant's properties.Soon after, trial commenced, D died, and so his heirs moved for thedismissal of the case. Rule on the dismissal motion. (5%)

A. Dismissal motion granted. The principal action to which theattachment is merely ancillary, is a money claim and the attachment cannot

survive the dismissal of this principal action. {Regala v. CA, 183 SCRA 595(1990)]


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Q. Action by P against D in the RTC for the collection of sums ofmoney covered by two promissory notes which were attached to thecomplaint. There were allegations in the complaint of partial payments

of outstanding balance. D duly filed an answer denying all the materialallegations of the complaint because " he does not have knowledgesufficient to constitute a belief as to the truth of the allegationscontained therein." Would P be entitled to judgment on the pleadings?(10%)

Q. X Bus Co. purchased 10 buses from Y Motor Co. covered withpromissory notes and deeds of chattel mortgage. Then, Y assignedthese notes and deeds of chattel mortgage to A Bank and thensubsequently assigned the same notes and chattel mortgage to B

Finance Co. Then, when X defaulted on the notes, Y, A and Bdemanded payment. In view of their conflicting claims against it, X filedin the RTC an interpleader action against Y, A and B praying that thecourt determine which among them is entitled to payment on the notes.Three days later, B filed an action for replevin with damages against Xand Y praying that Y be declared liable to pay B's claim against X in theevent that B is not able to recover thereon against X. Defendantsmoved to dismiss the replevin complaint on the ground of the pendencyof the interpleader action. Rule on the motion to dismiss.

A. Motion to dismiss granted. There is identity of parties between theinterpleader case an the replevin case. In the interpleader case, the plaintiffis X and the defendants are Y, A and B. In the replevin case, the plaintiff is Band the defendants are X and Y. In both cases, therefore, B, X and Y areparties with the addition of A, but this addition dos not detract from therequisite identity. In both cases, the rights spring from the deeds ofassignment executed by Y in favor of A and B, covering the very same debtsof X owing to Y. The identity in both cases is such that any judgment thatmay be rendered in the interpleader case would amount to res judicata in thereplevin 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 onthe replevin case and undercut B's cause of action in the replevin case.(Sanpiro Finance Corp. v IAC, 220 SCRA ... [3rd Div., 1993])

Q. P, a resident of Manila, sued D, also a resident of Manila, in theRTC-QC to collect P500,000.00 based on a promissory note. 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. Isthe dismissal correct?

A. No, the matter of residence is one of venue only and not ofjurisdiction. The court cannot motu proprio dismiss an action for improper


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venue, a motion being required for that purpose. Venue touches more uponthe convenience of the parties rather than upon the substance or merits ofthe case. It involves no more and no less than a personal privilege whichmay be lost by failure to assert it seasonably. (See Guzman v Batario, 95

O.G. pp 3477 [CA 1994])

Q. Where in an action by P against D to recover P3 Milliondamages for physical injuries allegedly suffered in a vehicular collision,D files an answer which contains nothing but general denials, can Phave judgment on the pleadings or summary judgment?

A. No judgment on the pleadings because the failure to make a specificdenial does not amount to an admission of the averments as to the amount ofunliquidated damges (Rule 8, Sec 11) and therefore, there is a triable issue of

fact (Rule 34, Sec 1). But summary judgment may be granted if, after noticeand hearing, the court should find, on the basis of the pleadings supportingaffidavits, depositions, and admissions on file that, except as to the amount ofdamages, there is no genuine issue as to any material fact and that themoving party is entitled to a judgment as a matter of law. (Rule 35, Sec 3)

Q. Where there is an issue as to defendant's liability for exemplarydamages, may the court render summary judgment in the case?

A. 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 fordamages. (Rule 35, sec 3)

Q. How does the defendant raise the issue as to his legal capacityto be sued?

A. By moving to dismiss on the ground that the court has no jurisdictionover his person. (Rule 16, sec 1[a])

Q. P sued D to recover possession and ownership of a parcel of

land, but this action was dismissed (after the case was scheduledseveral times for trial) for P's failure to prosecute. After the dismissalorder had become final, P brought another action against D for quietingof title over the same parcel of land. D moved to dismiss this 2nd actionon the ground of res judicata. Rule on the motion.

Motion to dismiss granted. The dismissal had the effect of an adjudication onthe merits, the court not indicating otherwise. (Rule 17, sec 3) The judgmentin the first case having become final and there being the requisite identity ofparties, subject matter and causes of action, res judicata bars second action.

(Panado v Cortez, 94 OG 4 [CA;1993])


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Q........basis of the decree, in the interpleader suit, A won the ejectmentaction. B did not appeal this judgment, but prevailed on his earlierappeal from the interpleader decree an was awarded the rents whichhas been collected. When B sought to bring an ejectment action

against A, the latter pleaded res judicata, based on his previoussuccessful ejectment action. Rule on A's invocation of res judicata.

A. Res judicata properly applies. The judgment in the ejectment actionis final and not open to attack collaterally, but subject to impeachment onlythrough some form of direct attack. The appellate court was limited to areview of the interpleader decree. (Reed v Allen, 26 U.S. 191, 52 S. Ct. 532,76 L. Ed., 1054 [1932])

Q. Distinguish "law of the case" from res judicata

Q. Defendant moved to dismiss the complaint on the ground thatits allegations are "not sufficient to warrant the relief prayed for." Ruleon the motion to dismiss.

A. 1Motion to dismiss denied. This is not a ground for a motion todismiss, and the prayer is part of the complaint and, save in case of default,is of no importance. (Camponanes v Bartolomen, 38 Phil 608).

Q. P, a resident of Manila, filed a complaint against D, a resident ofIloilo, in the RTC-Manila. This complaint contains 2 causes of action,one for money, and the other for title to real property in Baguio, bothcauses of action arising out of the same transaction between theparties. Is there anything procedurally wrong with the complaint?

A. There is misjoinder of causes of action, and therefore the courtshould order their separation so that each cause of action may proceedindependently of the other. While joinder of causes of action is allowed, thecause of action for title to property in Baguio...mislaid. (Rule 2, secs 5 [c] and

6)


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IX. DISMISSALS AND DEFAULTS

Q: In his effort to unclog his docket and coming across the record ofSpecial Proceedings No. 801, a guardianship case involving a minor

with properties worth more than a million pesos, and finding the saidcase to have been pending since way back in 1983, after petitioner hadpresented one witness only, following the appointment of X asguardian, Judge Y of the Nueva Ecija Regional Trial Court dismissed thecase for failure to prosecute. Is the order of dismissal valid? (5%)

A: Based on 1985 Bar Exam. No. A guardianship case involving a minorcontinues until the minor has reached the age of majority. It cannot thereforebe dismissed for failure to prosecute.

Q: Does dismissal of a complaint on plaintiff's motion carry with it thedismissal of defendant's compulsory counterclaim? (5%)

A: No, the dismissal "shall be limited to the complaint." (Rule 17, Sec. 2)

Q: P sued D to compel the latter to execute a deed of sale to him over aparcel of land the purchase price of which had allegedly already beenfully paid by P. After his motion to dismiss on the ground ofprescription was denied, D filed his answer in due course and thencetrial was held. After trial, judgment was renderd against D who then

filed a motion to dismiss for lack of jurisdiction on the ground that P didnot pay the correct docket fees which should have been assessed onthe basis of the value of the property and damages sought and not onthe basis of the action as one for specific performance when it wasactually for recovery of property. Rule on the motion to dismiss. (10%)

A: Motion to dismiss denied. In the first place, the action is really for recoveryof real property and not for specific performance since P's primary objective isto regain the ownership and possession of the parcel of land. In the secondplace, although the payment of the proper docket fees is a jurisdictional

requirement, the trial court may allow the plaintiff to pay the same within areasonable time before the expiration of the applicable prescriptive orreglementary period. In any event, the balance between the appropriatedocket fees and the amount actually paid by the plaintiff will always beconsidered a lien on any judgment P may obtain. Thirdly, the motion todismiss came too late. D is already estopped from raising the issue ofjurisdiction after he had actually taken part in the very proceedings which hequestions and after the court had rendered a judgment adverse to him. (SeeNational Steel Corp. vs. Court of Appeals, 302 SCRA 522 [2nd Div.; 1999])


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Q: Where the defendant has been declared in default, does the plaintiffstill have to present evidence to support his complaint in order for himto obtain judgment thereon? (5%)

A: No need. The Court may render judgment granting plaintiff such relief ashis pleading may warrant unless in its discretion the court requires him tosubmit evidence. (Rule 9 Sec. 3)

Dismissals

Q. 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 manifestationthat he is no longer interested in prosecuting his complaint provided,

however, the defendant foregoes with his counterclaim. D filed acounter-manifestation agreeing to the dismissal of the complaint andhis counter claim. Whereupon, the RTC issued an order dismissingplaintiffs complaint and defendants counterclaim without costs. Pssuccessor-in-interest now sues to recover the same parcel, and Dssuccessor-in-interest moves to dismiss this new complaint on theground of res judicata. If you were the judge, would you grant themotion to dismiss? (1994 Midterm Exam IIa)

A. No. Dismissal of the first case was without prejudice. The dismissal having

been at plaintiff's 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).

Q. Relying on a document of sale, P sued D in the RTC to recoverownership of a parcel of land. For failure of P to amend his complaintconformably to an order of the court, the complaint was dismissed. Amonth thereafter, P re-filed the same complaint in the RTC, and thiscomplaint is now met with a motion to dismiss by D on the ground ofres judicata. Resolve the motion to dismiss. (1994 Midterm Exam VIIIa)

A. Motion to dismiss granted. The dismissal of the first case was withprejudice pursuant to Section 3, Rule 17. Therefore, all requisites for resjudicata are present. (Enriquez v. Boyles, 226 SCRA 666 3rd Div., 1993)

Q. May a court dismiss an action for failure of plaintiff's lawyer toappear at the trial despite due notice? (5%)

A. No. R17S3 does not authorize a dismissal on the ground of absence ofcounsel. What the court should do is to grant the plaintiff and hour or two to

engage the services of a new lawyer. [Dayo v. Dayo; 95 Phil 703 (1954)]


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Defaults

Q. In an action by P against D in the RTC for a sum of money, summonswith copy of the complaint was served on D on 22 April 1995. For filing

his answer one month later without any previous extension of his timeto plead and on P's motion, the RTC declared D in default and thereafterrendered judgment by default against him. After his motion forreconsideration of the default order was denied, D went to the Ca oncertiorari and prohibition to challenge the default order. Is D's petitiontenable? (1996 Midterm Exam VIb)

A. No. Certiorari and prohibition are improper because D has till anappropriate remedy by way of a Rule 38 petitions for relief. (See Lina v. CA,135 SCRA 637 [1985])

Q. Due to personal injuries suffered in a vehicular collission, P sued Dfor P300,000 in actual damages, P1 Million in moral damages, P1 Millionin exemplary damages and P500,000 for attorney's fees. Assuming thatD is declared in default, how much can the court properly award P?(5%) [1999 Midterm XIII]

A. Nothing, except probably such attorney's fees as the court may findreasonable. Unliquidated damages cannot be awarded against a partydeclared in default. (Rule 9, Sec. 3[d])

Q. Due to personal injuries suffered in a vehicular collision, P suedD for P300,000.00 in actual damages, P1 Million in moral damages, P1Million in exemplary damages and P500,000.00 for attorney's fees.Assuming that D is declared in default, how much can the courtproperly award P?

A. Nothing, except probably such attorney's fees as the court may findreasonable. Unliquidated damages cannot be awarded against a partydeclared in default. (Rule 9, Sec 3[d]).

Q. Do you see any advantage that plaintiff may gain by obtaining avoluntary dismissal of his complaint before the court can act ondefendant's motion to dismiss the same complaint for failure to state acause of action?

A. Dismissal for failure to state a cause of action is an adjudication onthe merits and has res udicata effect, whereas a voluntary dismissal beforeanswer is not. Besides, the court might award attorney's fees even as itdismisses the case for failure to state cause of action, and plaintiff can avoid

this possibility by having the case dismissed.


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Q. In what instances may a judgment by default be renderedagainst defendant?

A. (1) When defendant has been declared in default for failure to answer

within the reglementary period. (Rule 9, sec 3). (2) When defendant refusesto obey discovery order. (Rule 29, Sec 3[a])

Q. Where the defendant was declared in default despite the factthat he had not been duly summoned, does he still have to demonstratea "meritorious defense" as a condition precedent to setting aside thedefault order?

A. No more. The default judgment is illegal and the motion to set itaside does not have to be accompanied by an affidavit of merit. (Ponio v

IAC, 133 SCRA 577, 2nd Div [1994]) Besides, the theory of the requirementthat there would be no purpose served by re-opening the judgment ifdefendant would simply lose on the merits in any event does not applybecause had the defendant been notified of the suit, he might have workedout a settlement, or paid the debt, or himself raised enough funds to pay thedebt, rather than to suffer its being sold at a sheriff's sale. (See Perlata vHeights Medical Center, Inc, 485 US 80, 108 S. Ct. 896, 99 L2nd 75 [1988])


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X. PROVISIONAL REMEDIES

Q. P sued D in the RTC on a claim for P300,000.00 and obtained awrit of preliminary attachment on D's property. The sheriff attached a

Mercedes Benz car found in D's garage. Then, T, a brother of D, filedwith the sheriff a third party claim, T swearing in his affidavit of thirdparty claim that his right to the possession of the Mercedes Benz car isderived from the fact that D purchased this car with funds borrowedfrom him. What action, if any, should the sheriff take on T's third partyclaim? (5%)

A. The sheriff should just ignore T's third-party claim. The affidavit isinsufficient under R57S14 to cause discharge of the attachment because theclaimant alleged that he was a mere creditor of the attachment debtor. T

does not claim to have a title to or a lien on, the attached property whichwould entitle him to its possession. [See Weadcock v. Ofilada; 84 Phil ___(1949)]

Q: Can a temporary restraining order be issued ex-parte? (5%)

A: Yes, but effective for 72 hours only and this is to be issued by theexecutive judge of a multiple-sala court or the presiding judge of a single-salacourt and only if the mater is of extreme urgency and the applicant will suffergrave injustice and irreparable injury. (Rule 58, Sec. 5, 2nd par.)

Q: In an action for a sum of money, P obtained a writ of attachment andlevied it on D's properties. D filed an answer, in which he assertedprescription of P's alleged cause of action as one of his affirmativedefenses and on which he sought a preliminary hearing. D also pleadeda counterclaim where he prayed for damages arising from theattachment which he claimed was maliciously obtained andimplemented. After the hearing on D's affirmative defense ofprescription the court found that P's cause of action had alreadyprescribed and therefore ordered the dismissal of the complaint as well

as D's counterclaim which it said could not remain for independentadjudication. With the dismissal of the counterclaim, can D still recoverdamages against the attachment bond for illegal attachment? (10%)

Preliminary Injunction

Q. P bought a house and lot from X, with a balance remaining on thepurchase price but which balance was secured by a mortgage on thepremises. Then, P sued D, an occupant, in the RTC to recover

possession of the house and lot. After due trial, the RTC renderedjudgment for P and ordered D to vacate and deliver the premises to P.


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A writ of execution was, in due course, issued for this judgment.However, before the writ of execution could be carried out, D, claimingto be an assignee of X's mortgage, filed in another RTC a suit forforeclosure of the mortgage, with prayer for preliminary injunction.

Should D be granted a preliminary injunction to enjoin his evictionunder the judgment in the first case? (1994 Midterm Exam V)

A. No. P, as the prevailing party in the first case, is entitled as a matter ofright to a writ of execution. Moreover, D does not have a clear right in essewhich deserves protection by an injunction; he claims the right to foreclosethe mortgage by virtue of a supposed assignment to him by X of the balanceof the purchase price secured by a mortgage on the premises. D's right to foeclose has yet to be established and an injunction is not the instrument to dothis. Ulang v. CA, 225 SCRA 637 (2nd Div., 1993).

Q. In a petition for relief in the RTC against an RTC money judgment(already final and executory), the RTC issued a preliminary injunctionenjoining the execution of the decision. After due hearing, the RTCdismissed the petition for relief, and petitioner appealed the dismissalorder to the CA. While the appeal is pending, may the judgment soughtto be set aside on the petition for relief be executed? (5%) [1997Midterms VIIa]

A. 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 apreliminary injunction issued as an auxiliary remedy which auxiliary remediesare not dissolved unless the trial court expressly says so. For the trial courtto have dissolved the preliminary injunction here would have mooted theappeal. (Dimaunahan v Arnas, 74 Phil. 155)

PROVISIONAL REMEDIES (Preliminary injunction)PLEADINGS (Counterclaim and cross-claim)

Q. In an action by P against D for prohibition, P obtained a writ ofpreliminary injunction against D. On certiorari to the SC, the writ ofpreliminary injunction was nullified on the ground that the petition waspremature because P had not exhausted his administrative remedies.Taking his cue from the SC decision, D filed a motion to dismiss thecomplaint for failure to state a cause of action and the motion wasgranted. After this dismissal order became final, D filed an actionagainst P to recover damages resulting from the issuance of thepreliminary injunction in the first case. P now moves to dismiss thedamage action on the ground that it is barred for not having been set up

as a compulsory counterclaim in the prohibition case. Rule on P'smotion to dismiss. (1996 Midterm Exam III)


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A. Motion may be tolerably argued both ways. Arguable that D had waivedhis claim for damages resulting from the unlawfully issued injunction byhaving moved to dismiss the complaint in which he had a compulsory

counterclaim. (See Int'l Container Services, Inc. v. CA, 214 SCRA 456 [FirstDiv., 1992]). It is also arguable however that the case is assimilable to onewhere the principal case was dismissed for lack of jurisdiction in which noclaim for damages could have been presented in that case so that thisindependent action for damages for the illegal injunction is not abated (SeeSantos v. CA, 95 Phil. 360 (1954])

Q. Suppose the main case is dismissed by judgment after trial andthis judgment is appealed, what happens pending appeal to a writ of

preliminary injunction issued by the trial court while the case waspending with it? (10%)

A. The preliminary injunction is not ipso facto dissolved if the judgmentof dismissal is silent on the matter as, otherwise, the case will become mootdespite the appeal. So, the preliminary injunction is dissolved only if the courtexpressly says so. [Dimaunahan v. Aranas; 74 Phil 455, 460 (1943)]. Therule is different in case of a permanent injunction, in which case R39, S4expressly providing that the judgment granting, dissolving, or denying theinjunction is immediately operative.

Q. Can the MTC issue a writ of preliminary mandatory injunction inan action of unlawful detainer? (5%)

A. No. Art. 359, NCC authorizes an MTC to issue a writ of preliminarymandatory injunction in forcible entry cases only.

Q. P, a resident of San Juan, Metro Manila, entered into anagreement with D, a resident of Quezon City, respecting a piggerybusiness in Marilao, Bulacan. They quarreled over the management and

control of the business, and so P sued D in RTC-QC which issued apreliminary injunction restraining D, his nominees, and all personsclaiming under him from entering the piggery compound in Marilao,Bulacan. D moved to lift the preliminary injunction on the ground that itis sought to be enforced beyond the territorial jurisdiction of the RTC-QC. Resolve the motion.

A. Motion to lift denied. An injunction to restrain acts committed outsidethe territorial jurisdiction of the issuing court is valid where the principalbusiness addresses of the parties and the decisions on the acts to be

restrained are located and originated within the court's jurisdiction. (EmbassyFarms, Inc. v CA, 188 SCRA [1990], 2nd Div.)


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XI. DISCOVERY

Q: "work product rule"

A: The rule which immunizes from discovery the notes, impressionss andother work product of the lawyer gathered or obtained in preparation forlitigation.

Depositions

Q. (a) Can a party take the deposition of a person without any showing

that the deponent will be unavailable as a witness at the trial? (b) If so,can such deposition be used in evidence? (1994 Midterm Exam IVab)

A. (a) Yes. Availability of the deponent as a witness at the trial will affect theparty's right to use the deposition - not his right to take it. See DasmarinasGarments, Inc. v. Reyes, 225 SCRA 822[2nd Div.], 1993). (b) Yes, under theconditions and for the limited purposes stated in Section 4, Rule 24.

Q. Suppose P had introduced in evidence a pre-trial deposition of D'sgeneral manager which contained a statement that the company had no

budget for the current year for repair of their vehicles, may P thereafter(i.e., after the general manager had testified for D) introduce evidencethat the general manager's reputation for truth and veracity is bad?[1999 UP Barops I]

A. Yes, by using the deposition as substantive evidence, P had not therebymade the general manager his own witness (Rule 24, Sec. 8). Hence, theimpeachment of D's witness by reputation evidence is still open to P.Moreover, by presenting the general manager's deposition, P in effect madethis general manager an adverse-party witness under Rule 132, Sec. 12 and

so he may be impeached by P as if he was called by D.

Q. Since a deposition officer cannot rule on objections to evidence,what would be the point of raising any objection to evidence at thedeposition-taking? (5%) [1997 Midterms VIIb]

A. See Rule 24, Sec. 29 (e).


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Request for admission

Q. Where the defendant fails to answer a request for admission servedon him by plaintiff asking for admission of all the material allegations of

the complaint, what is the plaintiff's best procedural recourse? (5%)[1999 Midterm VI]

A. He should file a motion for summary judgment because the materialallegations of the complaint are not disputed. (See Allied _______BusinessDevelopment Co., ______vs. CA, GR No. 11843__, Dec. 4, 199_)

Q. May discovery still be resorted to by a party litigant even afterthe promulgation of final and executory judgment? (5%)

A. Yes. See R39, Sections 38-40.

Q. Does a party litigant enjoy any discovery rights after thepromulgation of final and executory judgment? (5%)

A. Yes. See R39 Secs. 38-40.

Q. Where the defendant fails to answer a request for admissionserved on him by plaintiff asking for admission of all the materialallegations of the complaint, what is plaintiff's best procedural

recourse?

A. He should file a motion for summary judgment because the materialallegations of the complaint are not disputed. (See Allied... BusinessDevelopment Co. v CA, GR No. 118436)

Q. The court issued a subpoena duces tecum ordering thedefendant "to bring with her whatever document is in her possessionrelative to this case." Is it possible to quash this subpoena ducestecum and, If so, on what grounds?

A. Yes. On 2 grounds, to wit: 1) it is unreasonable and oppressive as itrequires the production of numerous books, documents or things that are notproperly described or identified; or, 2) if the person in whose behalf thesubpoena is issued fails to advance the reasonable cost of the productionthereof. (Rule 21, Sec 4; Uy v Aleonar, 94 O.G. p 1971 [ 1993; CA ])


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XII. PRE-TRIAL

Q. The complaint was dismissed for failure of the plaintiff to appear atthe pre-trial despite due notice. May he re-file the complaint? (5%) [1997

Midterms VIb]

A. No. The dismissal for non-suit is effectively for failure to prosecute and istherefore an adjudication on the merits under Section 3 of Rule 17.

XIII. TRIAL

Subpoena

Q. May a court order the immediate arrest of a witness who has failed toobey a subpoena in a case pending with it? (1996 Midterm Exam Xb)

A. No. Failure to obey subpoena constitutes indirect not direct contempt forwhich the alleged contemnor could not be adjudged guilty without hearing.Properly, the court should first issue an order requiring the alleged contemnorto show cause why he should not be punished for disobedience to its processin order to give him a chance to explain his failure to appear as witness. See

Gardones v. Delgado, 58 SCRA 581 (1974).

Q. How can you, as a party to a civil action, access a document underthe control of a non-party? [1999 UP Barops VII]

A. By subpoena duces tecum.

Demurrer To Evidence

Q. Action to collect on a promissory note. At the trial, plaintiffpresented the note through its records custodian who had no personalknowledge of the transaction. After plaintiff rested, the defendant fileda demurrer to evidence on the ground that plaintiff's evidence wasmerely hearsay. The trial court granted the demurrer. On appeal,however, the CA reversed and remanded the case to the trial court forfurther proceedings. Did the CA act correctly? (10%) [2000 Finals I]

A. No. CA should have rendered judgment on the basis of the evidencesubmitted by petitioner. The evidence was sufficient to support plaintiff's

claim. Even if plaintiff's witness had no personal knowledge of thepromissory note, this note is still admissible to prove its existence and its


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tenor as these facts are of independent relevance. Under section 1, Rule 33,defendant is deemed to have already waived his right to present evidence as,by filing a demurrer, he is deemed to have elected to stand on theinsufficiency of plaintiff's evidence. (Radiowealth Finance co. v. Del Rosario,

GR No. 138739, July 6, 2000)

Q. May a court dismiss an action for failure of plaintiff's lawyer toappear at the trial despite due notice? (5%)

XIV. JUDGMENTS

Q. When is a judgment of a trial court considered to have been

promulgated? (5%) [1995 Finals IIa]

A. In civil cases, upon the filing with the clerk of court of the signed decision.In criminal cases, upon the reading of the judgment in the presence of theaccused and of any judge of the court in which it was rendered.

Judgment On The Merits

Q. In a suit on promissory notes which stipulated that the interest due

shall be compounded quarterly, the RTC rendered judgment ordering Dto pay P the notes with 18% interest per annum. After the judgmentbecame final and executory, D tendered to P an amount in full paymentof the judgment debt but P rejected this tender on the ground that perPs computation the judgment debt was much more. The differencebetween the two amounts arises from the disagreement as to whetherthe judgment allowed quarterly compounding of interest; P said that itdid, but D claimed it did not. D then consigned the amount with the trialcourt under a motion praying for a ruling that the judgment did notallow quarterly compounding of interes

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