Updates Civil Procedure (1)

8/12/2019 Updates Civil Procedure (1)

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UPDATES IN CIVIL PROCEDURE

Zenaida T. Galapate-LaguillesAssoiate !ustie

COURT O" APPEALS

CAUSE OF ACTION:

#.DOLORES ADORA $ACASLANG %s.RENATO AND $EL&A ZA$ORA' G.R. No. #()*+('$a, *' ##.

In resolving whether the complaint states a cause of actionor not, only the facts

alleged in the complaint are considered. The test is whether the court can render a valid

judgment on the complaint based on the facts alleged and the prayer asked for. Onlyultimate facts, not legal conclusions or evidentiary facts, are considered for purposes ofapplying the test.

. $A/ATI STOC/ E0C1ANGE' INC.' $A. VIVIAN 2UC1ENGCO' ADOL"O$. DUARTE' $2RON C. PAPA' NOR&ERTO C. NAZARENO' GEORGE U2-

TIOCO' ANTONIO A. LOPA' RA$ON &. ARNAIZ' LUIS !.L. VIRATA' andANTONIO GARCIA' !R. %s. $IGUEL V. CA$POS' su3stituted 3, !ULIAORTIGAS VDA. DE CA$POS'G.R. No. #*44#5' Ap6il #)' 7.

A cause of action is the act or omission by which a party violates a right of another.A

complaint states a cause of action where it contains three essential elements of a cause ofaction, namely: !" the legal right of the plaintiff, #" the correlative obligation of thedefendant, and $" the act or omission of the defendant in violation of said legal right. Ifthese elements are absent, the complaint becomes vulnerable to dismissal on the ground offailure to state a cause of action.

%%% %%% %%%The mere assertion of a right and claim of an obligation in an initiatory pleading,

whether a &omplaint or 'etition, without identifying the basis or source thereof, is merely aconclusion of fact and law. A pleading should state the ultimate facts essential to the rightsof action or defense asserted, as distinguished from mere conclusions of fact or conclusionsof law.

*. P1ILIPPINE AR$2' (t8 In9ant6, Di%ision' t86oug8 GEN.ALE0ANDER 2APSING' LT. COL. NICANOR PENULIAR' and LT. COL."ERNANDO PASION %s.

SPOUSES $A!OR CONSTANCIO PA$ITTAN :Ret.; and LEONORPA$ITTAN' SPOUSES AL&ERTO TALINIO and $ARIA C1ONA P. TALINIO'SPOUSES T


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Page 2Updates in Civil Procedure

Zenaida T. Galapate-Laguilles

Associate JusticeCourt of Appeals

PA!ARILLO and "RANCES PA!ARILLO' SPOUSES $a, o9 Class Suit' G.R. No. #4+*)'!une #(' ##.

(enerally, a motion to dismiss based on failure to state a cause of actionhypothetically admits the truth of the allegations in the complaint and in order to sustain a

dismissal based on lack of cause of action, the insufficiency of the cause of action mustappear on the face of the complaint. )owever, this rule is not without e%ception. Thus, amotion to dismiss *does not admit allegations of which the court will take judicial notice arenot true, nor does the rule apply to legally impossible facts, nor to facts inadmissible inevidence, nor to facts which appear by record or document included in the pleadings to beunfounded.*Indeed, in some cases, the court may also consider, in addition to thecomplaint, other pleadings submitted by the parties and the anne%es or documentsappended to it.

5. NELSIE &. CA?ETE %s. GENUINO ICE CO$PAN2' INC. G.R. No.#(54'!anua6, ' 4.

&orollarily, the +uestion of whether or not a complaint states a cause of actionagainst a defendant or the action is premature is one of law. The trial court can consider allthe pleadings filed, including anne%es, motions and the evidence on record. )owever in sodoing, the trial court does not rule on the truth or falsity of such documents. It merelyincludes such documents in the hypothetical admission. Any review of a finding of lack ofcause of action based on these documents would not involve a calibration of the probativevalue of such pieces of evidence but would only limit itself to the in+uiry of whether the lawwas properly applied given the facts and these supporting documents. Therefore, whatwould inevitably arise from such a review are pure +uestions of law, and not +uestions offact.

PREPARATION OF THE COMPLAINT:

(. GEORGIA T. ESTEL %s.RECAREDO P. DIEGO' SR. and RECAREDO R. DIEGO' !R.'G.R. No.#+54' !anua6, #)' #.

It is settled that with respect to the contents of the certification against forum

shopping, the rule of substantial compliance may be availed of.This is because there+uirement of strict compliance with the provisions regarding the certification of nonforum

shopping merely underscores its mandatory nature in that the certification cannot bealtogether dispensed with or its re+uirements completely disregarded. It does not therebyinterdict substantial compliance with its provisions under justifiable circumstances, as the&ourt finds in the instant case.


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). $ARCELINO DO$INGO %s. COURT O" APPEALS' AGAPITA DO$INGO'ANA DO$INGO' 1EIRS O" GAUDENCIO DO$INGO' na=el,@ DOROTEODO$INGO' !ULITA DO$INGO' A$ANDO DO$INGO' and ARCELDO$INGO 1EIRS O" !ULIAN DO$INGO' na=el,@ !ULIAN DO$INGO' !R.and PONCIANO DO$INGO 1EIRS O" EDIL&ERTA DO$INGO' na=el,@ANITA DO$INGO and ROSIE DO$INGO 1EIR O" "ELIPE DO$INGO'na=el,@ LORNA DO$INGO and 1EIRS O" GERONI$O DO$INGO'

na=el,@ E$IL2 DO$INGO and ARISTON DO$INGO 6ep6esented 3,ROLANDO DO$INGO'G.R. No. #)7#' "e36ua6, ' #.

-e thus take this opportunity to clarify that under ection !!, /ule !$ of the !001/ules of &ivil 'rocedure, personal service and filing is the general rule, and resort to othermodes of service and filing, the e%ception. )enceforth, whenever personal service or filing ispracticable, in light of the circumstances of time, place and person, personal service or filingis mandatory. Only when personal service or filing is not practicable may resort to othermodes be had, which must then be accompanied by a written e%planation as to whypersonal service or filing was not practicable to begin with. In adjudging the plausibility ofan e%planation, a court shall likewise consider the importance of the subject matter of the

case or the issues involved therein, and the prima facie merit of the pleading sought to bee%punged for violation of ection !!.

+. SPOUSES RA$ON $ENDIOLA and ARACELI N. $ENDIOLA %s. T1E1ON. COURT O" APPEALS' PILIPINAS S1ELL PETROLEU$CORPORATION' and TA&ANGAO REALT2' INC.' G.R. No. #(7+5)'!ul, #4'#.

The four tests to determine whether a counterclaim is compulsory or not are the

following, to wit: a" Are the issues of fact or law raised by the claim and the counterclaimlargely the same2 b" -ould res judicata bar a subse+uent suit on defendant3s claims,

absent the compulsory counterclaim rule2 c" -ill substantially the same evidence supportor refute plaintiff3s claim as well as the defendant3s counterclaim2 and d" Is there anylogical relation between the claim and the counterclaim, such that the conduct of separatetrials of the respective claims of the parties would entail a substantial duplication of effortand time by the parties and the court2 Of the four, the one compelling test ofcompulsoriness is the logical relation between the claim alleged in the complaint and that inthe counterclaim.

4. ROGER V. NAVARRO %s. 1ON. !OSE L. ESCO&IDO' P6esiding !udge'RTC &6an8 *+' Caga,an de O6o Cit,' and /AREN T. GO' doing 3usiness

unde6 t8e na=e /ARGO ENTERPRISES'G.R. No. #(*+44' No%e=3e6 +'7.

4inally, there is no law authori5ing sole proprietorships like petitioner to bring suit incourt. The law merely recogni5es the e%istence of a sole proprietorship as a form of businessorgani5ation conducted for profit by a single individual, and re+uires the proprietor or owner


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thereof to secure licenses and permits, register the business name, and pay ta%es to thenational government. It does not vest juridical or legal personality upon the soleproprietorship nor empower it to file or defend an action in court.

JURISDICTION:

7. UNITED CLAI$ANTS ASSOCIATION O" NEA :UNICAN;' 6ep6esented 3,its 6ep6esentati%e &IENVENIDO R. LEAL' in 8is o99iial apait, as itsP6esident and in 8is oBn indi%idual apait,' EDUARDO R. LACSON'ORENCIO ". VENIDA' !R.' T1EL$A V. OGENA' &O&&2 $. CARANTO'$ARILOU &. DE !ESUS' EDNA G. RA?A' and ZENAIDA P. OLIUINO' int8ei6 oBn apaities and in 3e8al9 o9 all t8ose si=ila6l, situated o99iialsand e=plo,ees o9 t8e National Elet6i9iation Ad=inist6ation %s.NATIONAL ELECTRI"ICATION AD$INISTRATION :NEA;' NEA &OARD O"AD$INISTRATORS :NEA &OARD;' ANGELO T. RE2ES as C8ai6=an o9 t8e

NEA &oa6d o9 Ad=inist6ato6s' EDIT1A S. &UENO' E-O99iio $e=3e6 andNEA Ad=inist6ato6' and >IL"RED L. &ILLENA' !OSPEP1 D. /1ONG1UN'and "R. !OSE VICTOR E. LO&RIGO' $e=3e6s' NEA &oa6d' G.R. No.#4+#+'!anua6, *#' #.

This &ourt3s original jurisdiction to issue writs of certiorari is not e%clusive. It is

shared by this &ourt with /egional Trial &ourts and with the &ourt of Appeals. Thisconcurrence of jurisdiction is not, however, to be taken as according to parties seeking anyof the writs an absolute, unrestrained freedom of choice of the court to which applicationtherefor will be directed. There is after all a hierarchy of courts. That hierarchy isdeterminative of the venue of appeals, and also serves as a general determinant of the

appropriate forum for petitions for the e%traordinary writs. A becoming regard for thatjudicial hierarchy most certainly indicates that petitions for the issuance of e%traordinarywrits against first level *inferior*" courts should be filed with the /egional Trial &ourt, andthose against the latter, with the &ourt of Appeals. A direct invocation of the upreme&ourt3s original jurisdiction to issue these writs should be allowed only when there arespecial and important reasons therefor, clearly and specifically set out in the petition. Thisis 6an7 established policy. It is a policy necessary to prevent inordinate demands upon the&ourt3s time and attention which are better devoted to those matters within its e%clusive

jurisdiction, and to prevent further overcrowding of the &ourt3s docket.

#. N$ ROT1SC1ILD SONS :AUSTRALIA; LI$ITED %s. LEPANTOCONSOLIDATED $INING CO$PAN2' G.R. No. #+(+77 No%e=3e6 4'##.

Thus, while mindful of our ruling in 8a 9aval and the new ection #, /ule #, this


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&ourt, in several cases, ruled that seeking affirmative relief in a court is tantamount tovoluntary appearance therein. Thus, in 'hilippine &ommercial International ;ank v. ATER>OR/S ANDCONSTRUCTION CORP. %s.$ANILA ELECTRIC CO$PAN2' G.R. No. #+#)5' Dee=3e6 )' #.

Indeed, when a court has no jurisdiction over the subject matter, the only power it

has is to dismiss the action.

#. $A2 D. A?ONUEVO' ALE0ANDER &LEE DESANTIS and !O1NDESANTIS NERI %s.INTESTATE ESTATE O" RODOL"O G. !ALANDONI' 6ep6esented 3,&ERNARDINO G. !ALANDONI as Speial Ad=inist6ato6'G.R. No. #+4#'Dee=3e6 #' #.

&onse+uently, when a court commits a mistake and allows an uninterested person tointervene in a casethe mistake is not simply an error of judgment, but one of jurisdiction.In such event, the allowance is made in e%cess of the court3s jurisdiction and can only bethe product of an e%ercise of discretion gravely abused. That kind of error may be reviewedin a special civil action for certiorari.

#*. P1ILIPPINE CO$$ERCIAL INTERNATIONAL &AN/ %s.SPOUSES>ILSON D2 1ONG PI and LOLITA D2 and SPOUSES PRI$O C1U2ACO'!R. and LILIA C1U2ACO' G.R. No. #+##*+' !une (' 7.

'reliminarily, jurisdiction over the defendant in a civil case is ac+uired either by the

coercive power of legal processes e%erted over his person, or his voluntary appearance incourt.As a general proposition, one who seeks an affirmative relief is deemed to havesubmitted to the jurisdiction of the court. It is by reason of this rule that we have hadoccasion to declare that the filing of motions to admit answer, for additional time to fileanswer, for reconsideration of a default judgment, and to lift order of default with motion for


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reconsideration, is considered voluntary submission to the court3s jurisdiction.This,however, is tempered by the concept of conditional appearance, such that a party whomakes a special appearance to challenge, among others, the court3s jurisdiction over hisperson cannot be considered to have submitted to its authority.

#5. LOURDES L. ERISTINGCOL %s. COURT O" APPEALS and RANDOLP1C. LI$!OCO' G.R. No. #)++' $a68 ' 7.

The landmark case of Tijam is, in fact, only an e%ception to the general rule that anobjection to the court3s jurisdiction over a case may be raised at any stage of theproceedings, as the lack of jurisdiction affects the very authority of the court to takecogni5ance of a case.In that case, the urety filed a =otion to


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Page Updates in Civil Procedure



#). RO$ULO ". PECSON %s. CO$$ISSION ON ELECTIONS'DEPART$ENT O" INTERIOR AND LOCAL GOVERN$ENT and L2NDON A.CUNANAN' G.R. No. #44)(Dee=3e6 5' 4.

Another legal reality is that the &O=@8@& is wrong in its ruling that the /T& couldno longer actually issue the writ on =arch !!, #J because it no longer had jurisdiction todo so after the appeal period lapsed and after the records were transmitted to the @&Auly !1, !00J, at the time '(=& filed its Answer incorporating its counterclaimsagainst DO(I@, it was not liable to pay filing fees for said counterclaims being compulsoryin nature. -e stress, however, that e99eti%e August #)' 5 unde6 Se. +' Rule #5#' asa=ended 3, A.$. No. 5--5-SC' doFet 9ees a6e noB 6eui6ed to 3e paid ino=pulso6, ounte6lai= o6 6oss-lai=s.

@@ LEONIDES $ERCADO' 6ep6esented 3, 8is 8ei6s@ RauelD. $e6ado' !i==, D. $e6ado' 1en6, D. $e6ado' Lou6ia6 D.$e6ado and Vi6gilio D. $e6ado %s.COURT O" APPEALS and SAN $IGUEL CORPORATION'G.R. No.#)7(+)' Oto3e6 #+' 4.A counterclaim or a claim which adefending party may have against any party" may be compulsory orpermissive. A counterclaim that !" arises out of or is necessarilyconnected with" the transaction or occurrence that is the subject matterof the opposing party3s claimK #" falls within the jurisdiction of the courtand $" does not re+uire for its adjudication the presence of third partiesover whom the court cannot ac+uire jurisdiction, is compulsory.


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Page !Updates in Civil Procedure



Otherwise, a counterclaim is merely permissive.-hen =ercado sought to annul the continuing holdout agreement

and deed of assignment which he e%ecuted as security for his creditpurchases", he in effect sought to be freed from them. -hile he admittedhaving outstanding obligations, he nevertheless asserted that those werenot covered by the assailed accessory contracts. 4or its part, aside frominvoking the validity of the said agreements, =& therefore sought tocollect the payment for the value of goods =ercado purchased on credit.

Thus, =ercado3s complaint and =&3s counterclaim both touched theissues of whether the continuing holdout agreement and deed ofassignment were valid and whether =ercado had outstanding liabilitiesto =&. The same evidence would essentially support or refute =ercado3sclaim and =&3s counterclaim.

;ased on the foregoing, had these issues been tried separately, theefforts of the /T& and the parties would have had to be duplicated.&learly, =&3s counterclaim, being logically related to =ercado3s claim,was compulsory in nature. &onse+uently, the payment of docket fees wasnot necessary for the /T& to ac+uire jurisdiction over the subject matter.

@@ A8O G.R. Nos. #(55+-+#'Septe=3e6 5' #'&AN/ O"CO$$ERCE %s.PLANTERS DEVELOP$ENT &AN/ and &ANG/O SENTRAL NGPILIPINAS and G.R. Nos. #(5(47-7'&ANG/O SENTRAL NGPILIPINAS %s. PLANTERS DEVELOP$ENT &AN/- :"N No. #5); -"#en$%C filed its Ans&er &it# Co'pulsor( Counterclai') t#e effecti*e rule t#en &as A.+.

,o. -2--/C 0+arc# ) 21) ic# does not reuire pa('ent of docet fees for

co'pulsor( counterclai's. ffecti*e August 6) 24) #o&e*er) under /ection ) ule

4) as a'ended ( A.+. ,o. 4-2-4-/C) docet fees are no& reuired to e paid e*en

in co'pulsor( counterclai' or cross-clai's. /ee 7orea Tec#nologies Co.) Ltd. *. Ler'a)

G.. ,o. 435!) Januar( ) 2!) 542 /CA ) 6-

SUMMONS:

#4. PLANTERS DEVELOP$ENT &AN/ %s. !ULIE C1ANDU$AL' G.R. No.#7()#7' Septe=3e6 (' #.

ubstituted service of summon made was invalidated due to the sheriff3s failure tospecify in the return the necessary details of the failed attempts to effect personal servicewhich would justify resort to substituted service of summons.

#7. CONSTANTINO A. PASCUAL' su3stituted 3, 8is 8ei6s' 6ep6esented3, Zenaida Pasual %s. LOURDES S. PASCUAL' G.R. No. #+#7#)'Dee=3e6 5' 7.


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Applying the above dis+uisitions, the jurisdiction over the person of the respondentwas never vested with the /T&, because the manner of substituted service by the processserver was apparently invalid and ineffective. As such, there was a violation of due process.

>urisdiction over the defendant is ac+uired either upon a valid service of summons or thedefendant3s voluntary appearance in court. -hen the defendant does not voluntarily submitto the court3s jurisdiction or when there is no valid service of summons, *any judgment ofthe court which has no jurisdiction over the person of the defendant is null and void.*

. ARNEL SAGANA %s. RIC1ARD A. "RANCISCO' G.R. No.#)#7('Oto3e6 ' 7.

>urisprudence has long established that for substituted service of summons to bevalid, the following must be demonstrated: a" that personal service of summons within areasonable time was impossibleK b" that efforts were e%erted to locate the partyK and c" thatthe summons was served upon a person of sufficient age and discretion residing at theparty?s residence or upon a competent person in charge of the party?s office or regular place

of business.It is likewise re+uired that the pertinent facts proving these circumstances bestated in the proof of service or in the officer?s return.

#. DATU PA0 PA/UNG S. $ANGUDADATU %s. T1E 1OUSE O"REPRESENTATIVES ELECTORAL TRI&UNAL and ANGELO O. $ONTILLA'G.R. No. #+74#*' Dee=3e6 #4' 4.

Indeed, if in ordinary civil cases which involve only private and proprietary interests"

personal service of summons is preferred and service by registered mail is not allowed onjurisdictional and due process grounds, with more reason should election cases whichinvolve public interest and the will of the electorate" strictly follow the hierarchy of modes of

service of summons under the /ules of &ourt.

. SPOUSES !ULIAN SANTIAGO' SR. and LEONILA SANTIAGO andSPOUSES LI$ !OSE ONG and $I$I ONG LI$ %s. &AN/ O" T1EP1ILIPPINE ISLANDS as suesso6 in inte6est o9 "a6 East &anF T6ustCo.' su3stituted 3, In%est=ents *5 P8ilippines "und I :SPV-A$C;'In.'G.R. No. #)*+57' Septe=3e6 )' 4.

In =illenium Industrial &ommercial &orporation v. Tan, it was held that service of

summons upon a defendant corporation must be made on a representative so integrated

with the corporation sued as to make it a priori presumable that he would reali5e hisresponsibilities and know what he should do with any legal papers received by himK thatclearly then, there is in this case substantial compliance with the rule on service ofsummonsK and that the need for speedy justice must prevail over technicality.


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*. DOLE P1ILIPPINES' INC. :TROPI"RES1 DIVISION; %s. 1ON.REINATO G. UILALA in 8is apait, as pai6ing Hudge o9 &6an8 #('RTC-$aFati Cit,' and ALL SEASON "AR$' CORP.'G.R. No. #)4+*' !ul,7' 4.

-ellsettled is the rule that service of summons on a domestic corporation is

restricted, limited and e%clusive to the persons enumerated in ection !!, /ule !B of the!001 /ules of &ivil 'rocedure, following the rule in statutory construction that e%pressiounios est e%clusio alterius.ervice must therefore be made on the president, managingpartner, general manager, corporate secretary, treasurer, or inhouse counsel.

5. DOLORES $ONTE"ALCON LAURENCE $ONTE"ALCON %s.RONNIE S. VASUEZ' G.R. No. #)(#)' !une #+' 4.

To ac+uire jurisdiction over the person of a defendant, service of summons must bepersonal, or if this is not feasible within a reasonable time, then by substituted service. It is

of judicial notice that overseas 4ilipino seafarers are contractual employees. They go back tothe country once their contracts e%pire, and wait for the signing of another contract with thesame or new manning agency and principal if they wish. It is therefore common knowledgethat a 4ilipino seaman often has a temporary residence in the urban areas like =etro=anila, where majority of the manning agencies hold offices, aside from his home address inthe province where he originates. In this case, respondent Has+ue5 hails from &amarinesur but he has lived in Taguig &ity when the complaint was filed. 9otice may then be takenthat he has established a residence in either place. /esidence is a place where the personnamed in the summons is living at the time when the service was made, even though he wastemporarily abroad at the time.

%%% %%% %%%In this case, we agree that the substituted service in Taguig was valid and justified

because previous attempts were made by the sheriffs to serve the summons, but to no avail.


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MODES OF DISCOVERY:

(. SOCORRO LI$OS' ROSA DELOS RE2ES and SPOUSES ROLANDODELOS RE2ES and EUGENE DELOS RE2ES %s. SPOUSES "RANCISCO P.ODONES and AR>ENIA R. ODONES' G.R. No. #4)7+7' August ##' #

As such, it is the duty of the courts to e%amine thoroughly the circumstances of eachcase and to determine the applicability of the modes of discovery, bearing always in mindthe aim to attain an e%peditious administration of justice.

The determination of the sanction to be imposed upon a party who fails to complywith the modes of discovery also rests on sound judicial discretion.

TRIAL:

). DOUGLAS ". ANA$A %s.P1ILIPPINE SAVINGS &AN/' SPOUSES SATURNINA &ARIA TO$AS COand T1E REGISTER O" DEEDS' $ETRO $ANILA' DISTRICT II'G.R. No.#4+#' !anua6, (' #.

@lementary is the rule that every motion must contain the mandatory re+uirements

of notice and hearing and that there must be proof of service thereof. The &ourt hasconsistently held that a motion that fails to comply with the above re+uirements isconsidered a worthless piece of paper which should not be acted upon. The rule, however, isnot absolute. There are motions that can be acted upon by the court e% parte if these wouldnot cause prejudice to the other party. They are not strictly covered by the rigid re+uirementof the rules on notice and hearing of motions.

+. UNITED PULP AND PAPER CO.' INC. %s. ACROPOLIS CENTRALGUARANT2 CORPORATION' G.R. No. #+#+( ' !anua6, (' #.

As an integral component of procedural due process, the threeday notice re+uired bythe /ules is not intended for the benefit of the movant. /ather, the re+uirement is for thepurpose of avoiding surprises that may be sprung upon the adverse party, who must begiven time to study and meet the arguments in the motion before a resolution by the court.'rinciples of natural justice demand that the right of a party should not be affected withoutgiving it an opportunity to be heard.

4. PRISCILLA AL$A !OSE %s.RA$ON C. !AVELLANA' ET AL.'G.R. No. #(4*7' !anua6, (' #.

The denial of a motion for reconsideration of an order granting the defending party3smotion to dismiss is not an interlocutory but a final order because it puts an end to theparticular matter involved, or settles definitely the matter therein disposed of, as to leave


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nothing for the trial court to do other than to e%ecute the order. Accordingly, the claimingparty has a fresh period of !L days from notice of the denial within which to appeal thedenial.

7. &ANCO DE ORO-EPCI' INC. :9o6=e6l, Euita3le PCI &anF; %s.!O1N TANSIPE/' G.R. No. #4#*(' !ul, ' 7.

It is important to note that a party declared in default M respondent Tansipek in thiscase M is not barred from appealing from the judgment on the main case, whether or not hehad previously filed a =otion to et Aside Order of


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does not re+uire that the impossible be done. 9emo tenetur ad impossibile. The law obligesno one to perform an impossibility.8aws and rules must be interpreted in a way that theyare in accordance with logic, common sense, reason and practicality.

JUDGMENT:

**. GOVERN$ENT SERVICE INSURANCE S2STE$ :GSIS; %s. 1EIRS O""ERNANDO ". CA&ALLERO' 6ep6esented 3, 8is daug8te6' !OCEL2N G.CA&ALLERO'G.R. Nos. #(47' Oto3e6 5' #.

In Ayala &orporation v. =adayag, the &ourt, in interpreting the third rule laid down

in un Insurance Office, 8td. v. >udge Asuncion regarding awards of claims not specified inthe pleading, held that the same refers only to damages arising after the filing of thecomplaint or similar pleading as to which the additional filing fee therefor shall constitute alien on the judgment.

*5. $ETROPOLITAN &AN/ AND TRUST CO. and SOLID&AN/CORPORATION %s. &ERNARDITA 1. PEREZ' 6ep6esented 3, 8e6 Atto6ne,-in-"at PATRIA 1. PEREZ'G.R. No. #4#45' "e36ua6, (' #.

The e%ception contemplated as to claims not specified or to claims although specifiedare left for determination of the court is limited only to any damages that may arise after thefiling of the complaint or similar pleading for then it will not be possible for the claimant tospecify nor speculate as to the amount thereof.

*(. SI$EON CA&ANG' VIRGINIA CA&ANG and VENANCIO CA&ANGALIAS DONDON %s. $R. $RS. GUILLER$O &ASA2'G.R. No. #4(4+'$a68 ' 7.

A final and e%ecutory judgment may no longer be modified in any respect, even if the

modification is meant to correct erroneous conclusions of fact or law and whether it will bemade by the court that rendered it or by the highest court in the land.The only e%ceptions tothis rule are the correction of !" clerical errorsK #" the socalled nunc pro tunc entrieswhich cause no prejudice to any party, and $" void judgments.

%%% %%% %%%

4urthermore, as a matter of settled legal principle, a writ of e%ecution must adhere toevery essential particulars of the judgment sought to be e%ecuted.An order of e%ecution maynot vary or go beyond the terns of the judgment it seeks to enforce. A writ of e%ecution mustconform to the judgment and if it is different from, goes beyond or varies the tenor of the


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judgment which gives it life, it is a nullity. Otherwise stated, when the order of e%ecutionand the corresponding writ issued pursuant thereto is not in harmony with and e%ceeds the

judgment which gives it life, they have pro tanto no validityM to maintain otherwise would beto ignore the constitutional provision against depriving a person of his property without dueprocess of law.

REMEDIES AGAINST JUDGMENT:

*). RO>ENA PADILLA-RU$&AUA ED>ARD RU$&AUA' G.R. No.#))+*4' August #5' 7.

A remand of the case to the /T& for further proceedings amounts to the grant of anew trial that is not procedurally proper at this stage. ection ! of /ule $1 provides that anaggrieved party may move the trial court to set aside a judgment or final order alreadyrendered and to grant a new trial within the period for taking an appeal.

*+. !ULIO &. PURCON' !R.' %s.$R$ P1ILIPPINES' INC. and $IGUEL L. RIVERA


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5. ALPA-PC$' INC. VINCENT &ULASAO' !ULIET &ULASAO and SUSANA&ULASAO' 1ONORA&LE !UDGE DANILO ". CA$AC1O' and T1E DEPUT2S1ERI"" O" T1E REGIONAL TRIAL COURT' LA TRINIDAD' &ENGUET'G.R. No. #7+#5' $a68 #7' #.

/ule B# of the /ules of &ourt governs the appeal of a decision of the /T& rendered inthe e%ercise of its appellate jurisdictionK the appeal is made by filing a petition for reviewwith the &A.


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mode of enforcement does not rule out the right of rescission under Art. #B! of the &ivil&ode. The availability of the right of rescission is apparent from the wording of ec. B!1itself which provides that the amicable settlement *may* be enforced by e%ecution by thelupon within si% C" months from its date or by action in the appropriate city or municipalcourt, if beyond that period. The use of the word *may* clearly makes the procedureprovided in the /evised Datarungang 'ambarangay 8aw directory or merely optional innature.

5*. &PI "A$IL2 SAVINGS &AN/' INC. %s. GOLDEN PO>ER DIESELSALES CENTER' INC. and RENATO C. TAN' G.R. No. #+)#7' !anua6, #'##.

Therefore, in an e%trajudicial foreclosure of real property, when the foreclosed

property is in the possession of a third party holding the same adversely to the judgmentobligor, the issuance by the trial court of a writ of possession in favor of the purchaser of

said real property ceases to be ministerial and may no longer be done e% parte.Theprocedure is for the trial court to order a hearing to determine the nature of the adverse

possession.4or the e%ception to apply, however, the property need not only be possessed by

a third party, but also held by the third party adversely to the judgment obligor.

55. LA CA$PANA DEVELOP$ENT CORPORATION %s. ARTUROLEDES$A' 1ON. !UDGE ESTRELLA T. ESTRADA' in 8e6 apait, asPRESIDING !UDGE' Regional T6ial Cou6t' &6an8 4*' ueJon Cit,' andt8e 1ON. COURT O" APPEALS'G.R. No. #(5#(' August (' #.

It is true that ection #!, /ule 1 of the /ules of &ourt provides that *6t7he judgment

of the /egional Trial &ourt against the defendant shall be immediately e%ecutory, withoutprejudice to a further appeal that may be taken therefrom.* )owever, the &ourt ruled in;enedicto v. &ourt of Appeals that *on appeal the appellate court may stay the said writshould circumstances so re+uire. % % % even if /T& judgments in unlawful detainer casesare immediately e%ecutory, preliminary injunction may still be granted.* &iting Amagan v.=arayag and Hda. de 8egaspi v. Avendao, the &ourt e%plained in ;enedicto that:

-here the action, therefore, is one of illegal detainer, as distinguished from one offorcible entry, and the right of the plaintiff to recover the premises is seriously placed inissue in a proper judicial proceeding, it is more e+uitable and just and less productive ofconfusion and disturbance of physical possession, with all its concomitant inconvenienceand e%penses. 4or the &ourt in which the issue of legal possession, whether involvingownership or not, is brought to restrain, should a petition for preliminary injunction be filedwith it, the effects of any order or decision in the unlawful detainer case in order to await

the final judgment in the more substantive case involving legal possession or ownership. % %%


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5(. T1E PARENTS-TEAC1ERS ASSOCIATION :PTA; O" ST. $AT1E>C1RISTIAN ACADE$2 ET. AL. %s.T1E $ETROPOLITAN &AN/ and TRUST CO.'G.R. No. #+)(#4' $a68 '#.

As a general rule, the issuance of a writ of possession after the foreclosure sale and

during the period of redemption is ministerial. As an e%ception, it ceases to be ministerial if

there is a third party holding the property adversely to the judgment debtor.

Ordinarily, a purchaser of property in an e%trajudicial foreclosure sale is entitled topossession of the property. Thus, whenever the purchaser prays for a writ of possession, thetrial court has to issue it as a matter of course. )owever, the obligation of the trial court toissue a writ of possession ceases to be ministerial once it appears that there is a third partyin possession of the property claiming a right adverse to that of the debtorNmortgagor.-here such third party e%ists, the trial court should conduct a hearing to determine thenature of his adverse possession.

5). E$$ANUEL C. VILLANUEVA %s. C1ERDAN LENDINGINVESTORS CORPORATION' G.R. No. #++44#' Oto3e6 #*' #.

-e uniformly held that the obligation of the court to issue an e% parte writ ofpossession in favor of the purchaser in an e%trajudicial foreclosure sale ceases to beministerial once it appears that there is a third party in possession of the property who isclaiming a right adverse to that of the debtorNmortgagor.

5+. ELIGIO P. $ALLARI %s.GOVERN$ENT SERVICE INSURANCE S2STE$ and T1E PROVINCIALS1ERI"" O" PA$PANGA' G.R. No. #(+)(7' !anua6, (' #.

A writ of possession, which commands the sheriff to place a person in possession of

real property, may be issued in: !" land registration proceedings under ection !1 of Act9o. B0CK #" judicial foreclosure, provided the debtor is in possession of the mortgagedproperty, and no third person, not a party to the foreclosure suit, had intervenedK $"e%trajudicial foreclosure of a real estate mortgage, pending redemption under ection 1 ofAct 9o. $!$L, as amended by Act 9o. B!!JK and B" e%ecution sales, pursuant to the lastparagraph of ection $$, /ule $0 of the /ules of &ourt.

54. LAND &AN/ O" T1E P1ILIPPINES %s' $ANUEL O. GALLEGO' !R.'VELASCO' !R.' and !OSEP1 L. GALLEGO and C1RISTOP1ER GALLEGO'G.R. No. #+*)' !anua6, ' 7.

The e%ecution of a judgment before becoming final by reason of appeal is recogni5ed.


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)owever, this highly e%ceptional case must find itself firmly founded upon good reasonswarranting immediate e%ecution. 4or instance, e%ecution pending appeal was granted bythis &ourt where the prevailing party is of advanced age and in a precarious state of healthand the obligation in the judgment is nontransmissible, being for support, or where the

judgment debtor is insolvent. @%ecution pending appeal was also allowed by this &ourtwhere defendants were e%hausting their income and have no other property aside from theproceeds of the subdivision lots subject of the action.

57. ALLIED &AN/ING CORPORATION %s.RUPERTO !OSE 1. $ATEO' 6ep6esented 3, >ARLITA $ATEO' asAtto6ne,-in-"at' G.R. No. #)+5' !une (' 7.

The general rule in redemption is that it is not sufficient that a person offering toredeem manifests his desire to do so. The statement of intention must be accompanied byan actual and simultaneous tender of payment. This constitutes the e%ercise of the right torepurchase.

PROVISIONAL REMEDIES:

(. !OSEP1 &ERNARDEZ %s. CO$$ISSION ON ELECTIONS andAVELINO TOLEAN'G.R. No. #7*4' $a68 7' #.

In &aneland ugar &orporation v. Alon, it was settled that injunctive reliefs are

preservative remedies for the protection of substantive rights and interests. Injunction is nota cause of action in itself, but merely a provisional remedy, an adjunct to a main suit. -henthe act sought to be enjoined has become fait accompli, the prayer for provisional remedyshould be denied.

(#. NELSON !ENOSA and 8is son NI?O CARLO !ENOSA' SOCORROCANTO and 8e6 son PATRIC/ CANTO' C2NT1IA APALISO/ and 8e6daug8te6 C2ND2 APALISO/' EDUARDO VARGAS and 8is son CLINTEDUARD VARGAS' and NELIA DURO and 8e6 son NONELL GREGOR2DURO %s. REV. "R. !OSE RENE C. DELARIARTE' O.S.A.' in 8is apait,as t8e inu=3ent P6inipal o9 t8e 1ig8 S8ool Depa6t=ent o9 t8e

Uni%e6sit, o9 San Agustin' and t8e UNIVERSIT2 O" SAN AGUSTIN' 8e6ein6ep6esented 3, its inu=3ent P6esident REV. "R. $ANUEL G. VERGARA'O.S.A.'G.R. No. #+#*4' Septe=3e6 4' #.

ince injunction is the strong arm of e+uity, he who must apply for it must come with


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e+uity or with clean hands. This is so because among the ma%ims of e+uity are !" he whoseeks e+uity must do e+uity, and #" he who comes into e+uity must come with clean hands.

The latter is a fre+uently stated ma%im which is also e%pressed in the principle that he whohas done ine+uity shall not have e+uity. It signifies that a litigant may be denied relief by acourt of e+uity on the ground that his conduct has been ine+uitable, unfair and dishonest,or fraudulent, or deceitful as to the controversy in issue.

(. ROGER V. NAVARRO %s. 1ON. !OSE L. ESCO&IDO' P6esiding !udge'RTC &6an8 *+' Caga,an de O6o Cit,' and /AREN T. GO' doing 3usinessunde6 t8e na=e /ARGO ENTERPRISES' G.R. No. #(*+44'No%e=3e6 +'7.

-e see nothing in these provisions which re+uires the applicant to make a priordemand on the possessor of the property before he can file an action for a writ of replevin.

Thus, prior demand is not a condition precedent to an action for a writ of replevin.

(*. $ETRO' INC. and SPOUSES "REDERIC/ !UAN and LIZA !UAN %s.LARAKS GI"TS AND DECORS' INC.' LUIS VILLA"UERTE' !R. and LARA$ARIA R. VILLA"UERTE' G.R. No. #+#+5#'No%e=3e6 +' 7.

The rule that *when the writ of attachment is issued upon a ground which is at the

same time the applicant3s cause of action, the only other way the writ can be lifted ordissolved is by a counterbond* is applicable in this case. It is clear that in respondents3amended complaint of fraud is not only alleged as a ground for the issuance of the writ ofpreliminary attachment, but it is also the core of respondents3 complaint. The fear of the&ourt of Appeals that petitioners could force a trial on the merits of the case on the strengthof a mere motion to dissolve the attachment has a basis.

(5. SO"IA TORRES' "RUCTOSA TORRES' 1EIRS O" $ARIO TORRESand SOLAR RESOURCES' INC. %s. NICANOR SATSATIN' E$ILINDAAUSTRIA SATSATIN' NI//I NOR$EL SATSATIN and NI//I NORLINSATSATIN'G.R. No. #))+(7' No%e=3e6 (' 7.

There are two ways of discharging the attachment. 4irst, to file a counterbond inaccordance with ection !# of /ule L1. econd6,7 6t7o +uash the attachment on the groundthat it was irregularly or improvidently issued, as provided for in ection !$ of the samerule. -hether the attachment was discharged by either of the two ways indicated in the law,the attachment debtor cannot be deemed to have waived any defect in the issuance of the

attachment writ by simply availing himself of one way of discharging the attachment writ,instead of the other. The filing of a counterbond is merely a speedier way of discharging theattachment writ instead of the other way.


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((. $ETRO' INC. and SPOUSES "REDERIC/ !UAN and LIZA !UAN %s.LARAKS GI"TS AND DECORS' INC.' LUIS VILLA"UERTE' !R. and LARA$ARIA R. VILLA"UERTE'G.R. No. #+#+5#' No%e=3e6 +' 7.

In 8iberty Insurance &orporation v. &ourt of Appeals, we e%plained:

To sustain an attachment on this ground, it must be shown that the debtor in

contracting the debt or incurring the obligation intended to defraud the creditor. The fraudmust relate to the e%ecution of the agreement and must have been the reason whichinduced the other party into giving consent which he would not have otherwise given. Toconstitute a ground for attachment in ection !d", /ule L1 of the /ules of &ourt, fraudshould be committed upon contracting the obligation sued upon. A debt is fraudulentlycontracted if at the time of contracting it the debtor has a preconceived plan or intention notto pay, as it is in this case.

The applicant for a writ of preliminary attachment must sufficiently show the factualcircumstances of the alleged fraud because fraudulent intent cannot be inferred from thedebtor3s mere nonpayment of the debt or failure to comply with his obligation.

%%% %%% %%%

=oreover, the reliance of the &ourt of Appeals in the cases of &huidian v.andiganbayan, 4& &onstruction (roup, Inc. v. &ourt of Appeals, and 8iberty Insurance&orporation v. &ourt of Appeals is proper. The rule that *when the writ of attachment isissued upon a ground which is at the same time the applicant3s cause of action, the onlyother way the writ can be lifted or dissolved is by a counterbond* is applicable in this case.It is clear that in respondents3 amended complaint of fraud is not only alleged as a groundfor the issuance of the writ of preliminary attachment, but it is also the core of respondents3complaint. The fear of the &ourt of Appeals that petitioners could force a trial on the meritsof the case on the strength of a mere motion to dissolve the attachment has a basis.

(). AR$ANDO . CANLAS' $IGUEL D. CAPISTRANO' $ARRIETA PIA %s.NAPICO 1O$EO>NERS ASSN.' I M 0III' INC.' ET AL.' G.R. No. #4+7('!une (' 4.

The threatened demolition of a dwelling by virtue of a final judgment of the court,which in this case was affirmed with finality by this &ourt in (./. 9os. !11BBJ, !J1CJ,!111!, !11$J, is not included among the enumeration of rights as stated in the above+uoted ection ! for which the remedy of a writ of amparo is made available. Their claim totheir dwelling, assuming they still have any despite the final and e%ecutory judgmentadverse to them, does not constitute right to life, liberty and security. There is, therefore, no

legal basis for the issuance of the writ of amparo.

(+. LP&S CO$$ERCIAL' INC. %s.1ON. VENANCIO !. A$ILA' in 8is apait, as P6esiding !udge o9 t8e


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Regional T6ial Cou6t o9 Tag3ila6an Cit,' &6. * and T1E "IRSTCONSOLIDATED &AN/ :"C&; O" &O1OL' INC.'G.R. No. #5+55*' "e36ua6,##' 4.

The order denying petitioner3s motion for issuance of a T/O is an interlocutory order

on an incident which does not touch on the merits of the case or put an end to theproceedings.The remedy against an interlocutory order is not certiorari, but an appeal incase of an unfavorable decision. Only if there are circumstances that clearly demonstrate

the inade+uacy of an appeal that the remedy of certiorari is allowed,!# none of which ispresent in the instant case.

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