ESSAYS

1. Lynn was the lessee of an apartment unit owned by Louie. When the lease expired, Lynn
refused to vacate the property. Her refusal prompted Louie to file an action for unlawful
detainer against Lynn who failed to answer the complaint within the reglementary period.
Louie then filed a motion to declare Lynn in default. Judgment was rendered against
Lynn who filed a motion for reconsideration. Rule on the motions. (5%)

The motion filed by louie should have not been granted because it is a prohibited
pleading. As provided under sec 19 on rules of summary procedure, a motion to declare
a defendant in default is a prohibited pleading in an action for unlawful detainer.
Therefore, the motion should not be granted.
Moreover, an MR for a final judgment on the merits is
prohibited

2. Based on the complaint of Caloy against Kitoy alleging fraud and applying for the
issuance of a writ of preliminary attachment, the Regional Trial Court, after a hearing ex
parte, issued an order granting the application and directing the issuance and service of
the writ and the summons upon Kitoy. Served with summons and the writ of attachment,
Kitoy, in record time, filed a motion to lift the writ of attachment alleging that he was not
notified of the hearing on the issuance of attachment which is violative of his right to due
process. He further claims that the court has not yet acquired no jurisdiction over his
person when the writ was issued. Rule on the motion. (5%)

The motion to lift the writ must be denied.

The Supreme Court held in the case of Davao Light & Power Co., Inc. v. CA that a writ of
preliminary attachment may issue ex parte against a defendant for the reason that the time in
conducting the hearing may be sufficient for the defendant to hide or conceal his property to
prevent it from being attached by order of the court.

Hence, the contention of Kitoy that he was not notified of the hearing on the issuance of
attachment is not meritorious.
3. Judgment was rendered against defendant Jaypee in an action for unlawful detainer.
The judgment ordered Jaypee to vacate and to pay attorney’s fees in favor of Bart, the
plaintiff. To prevent the immediate execution of the judgment, would you advise the
filing of a notice of appeal and posting of a supersedeas bond as counsel for
Jaypee? Explain your answer briefly. (5%)

Yes, I would advise the filing notice of appeal. Rule 39, Section provides that
judgments as are now or may hereafter be declared to be immediately executory, shall
be enforceable after their rendition and shall not, be stayed by an appeal taken
therefrom, unless otherwise ordered by the trial court. Hence, by filing an appeal, there is
a possibility that the appellate court may, in its discretion, order that the judgment be
stayed.

No. as a counsel for jaypee, I would not advise the posting of the supersedeas bond.
As provided under rule 70, a supersedeas bond is necessary to prevent immediate
execution only if the judgment awarded rents, damages, and costs. In the present case,
the judgment merely ordered jaypee to vacate and pay attorney’s fees, a supersedeas
bond is not required to cover this order. Once v Gonzalez

Alternative answer:

Yes I would advise the filing of a notice of appeal. (rule 39) but not for the posting of the
supersedeas bond (rule 70) —- legal basis check nlng above wuwx. TYY!!!

4. Discuss the two modes of appeal from a judgment of the Regional Trial Court to the
Court of Appeals. (5%)

The two modes of appeal from judgment of the Regional Trial Court to the Court of Appeals are:
(1) Ordinary appeal under Rule 41; and (2) Petition for review under Rule 42.

a. Ordinary appeal is the appeal to the Court of Appeals in cases decided by the Regional
Trial Court in the exercise of its original jurisdiction by notice of appeal or record on
appeal under Rule 41.
b. Petition for review is the appeal to the Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its appellate jurisdiction which shall be by petition
for review in accordance with Rule 42.
5. James sues John for collection of Php5.0 Million that the latter borrowed from him.
Summons was issued but the sheriff, instead of actually serving it with a copy of
complaint at John’s known address of his residence, threw the court papers into a
garbage bin. In his return, the sheriff indicated that he has served John the summons
with the complaint at his residence stated in the complaint. Fifty (50) days after the
purported service of summons upon John, James’ counsel moved to declare John in
default. The court eventually rendered a judgment by default on July 1, 2019. John
received a call from his bank on January 20, 2020 that his account with Php10.0 Million
time deposit was garnished by the sheriff pursuant to a writ of execution. After inquiries
verifying the case, John, through counsel filed a motion for new trial alleging fraud
perpetrated by James and the sheriff.

1. Rule on the motion. (5%)

The motion for new trial must be dismissed. Sham Trial = Rule 65 petition for certiorari

Jurisprudence instructs that the fraud, as a ground for motion for new trial, must have been
perpetrated by the prevailing party.

In the case at bar, fraud was not employed by plaintiff James but by the sheriff.

Therefore, James not having any participation in the commission of such fraud, there can be no
valid ground for the granting of the motion for new trial.

2. May John avail of a petition for relief from judgment and lift the garnishment?
Explain. (5%)

Yes. A petition for relief from judgment and to lift garnishment may be pursued by
John alleging the fraud committed by the sheriff. Rule 38 allows a party to seek
relied from a judgment entered against them due to FAME.

3. Will an action for annulment of judgment lie? Explain. (5%)

Yes, an action for annulment of judgmenr uner rule 47 may lie. This remedy
allows a party to seek nullification of final order obtained by extrinsic fraud. In the
present case, although the fraud is not committed by the plaintiff, it was
committed by the sheriff in depriving john of his day in court to answer, and it is
an extrinsic fraud.
6. Gil sued Anton for breach of contract and damages. The Regional Trial Court adjudge
Anton liable and awarded to Gil actual damages of Php5,000,000.00 and exemplary
damages of Php5,000,000.00. In his petition for review for certiorari with the Court of
Appeals pursuant to Rule 65 of the Rules of Court, Anton alleges that the trial court
committed grave abuse of discretion in awarding excessive damages. Explain the
propriety of the petition filed by Anton. (5%)

Rule 65, Section 1

The petition filed by anton is proper. Rule 65 section 1 is filed to challenged the RTCs decision
on the ground of grave abuse of discretion, questioning the excessive award of damages which
is in the present case, is totalling to 10,000,000. In the present case, it is crucial that the Anton
proves that the RTCs award of damages was an arbitrary and capricious act based on evidence
presented during the trial.

7. In a complaint for recovery of possession over a one-hectare parcel of land in Carmona,

Cavite, Bobby alleges that Edu entered and fenced the property through stealth to the
prejudice and injury of Bobby and Edu should be restrained from committing further acts
of dispossession. Bobby prays for the issuance of a temporary restraining order and a
writ of preliminary injunction. Finding the complaint sufficient in form and substance and
by reason of the urgency of the relief prayed for, the court issued an order granting the
preliminary injunction applied for. If you are counsel for Edu, what remedy will you avail
of to prevent the court from enforcing the injunctive writ? Discuss your answer. (5%)

Petition for certiorari under rule 65 alleging grave abuse of discretion for improperly issuing the
writ preliminary injunction. A preliminary injuction is issued to preserve the status quo, it may not
be issued to take a property out of the possession and control of Edu infavor of Bobby whose
right to the property has not been clearly established. Sps laus v Optimum Security Services —
NOT SURE

8. Justice Secretary Midas Manalo reversed the resolution of the City Prosecutor
dismissing the complaint for estafa of Jack against Noel. If Noel engages you to
represent him in the case, would you consider filing a petition for review under Rule 43 of
the Rules of Court? Why? (5%)

No. I will not consider filing a petition for review under rule 43 but rather a petition for
certiorari under rule 65 with the present court alleging grave abuse of discretion
amounting to lack or excess of jurisdiction. The actions of the Secretary of Justice in
affirming or reversing the findings of prosecutors may still be subject to judicial review if it
is tainted with grave abuse of discretion. (De Lima v Reyes)

9. X filed an action for breach of contract and damages against Y. Y filed his answer. X filed
a motion for judgment on the pleadings. The motion was denied by the court. Discuss
what remedy is available to X from the order of denial of his motion for judgment on the
pleadings. (5%)

File an answer/responsive pleading

Proceed to trial
Motion for reconsideration filed with the present court to review its decision.
Interlocutory Appeal to seek review of the denial of the motion for judgment on the
pleadings. Appeal with the CA or certiorari under rule 65.

– di aki sure dito

10. Discuss fully how service of summons may be served upon a domestic juridical entity or
a corporation. (5%)

Rule 13, Section 12 of the Rules of Court provides that when the defendant is a corporation,
partnership or association organized under the laws of the Philippines with a juridical
personality, service may be made:

a. On the president, managing partner (not assistant managing partner nor senior partner),
general manager, corporate secretary, treasurer (not assistant treasurer), or in-house
counsel (not external counsel) of the corporation wherever they may be found (kahit pa
sa CR daw sabi ni Judge Gener), or in their absence or unavailability, on their
secretaries.
b. If such service cannot be made upon any of the foregoing persons, it shall be made
upon the person who customarily receives (even if guard or janitor pa yan) the
correspondence for the defendant at its principal office.
c. In case the domestic juridical entity is under receivership or liquidation, service of
summons shall be made on the receiver or liquidator, as the case may be.
d. Should there be a refusal on the part of the persons above-mentioned to receive
summons despite at least 3 attempts on 2 different dates, service may be made
electronically, if allowed by the court, as provided under Section 6 of this Rule.

11. After receiving a copy of the judgment against him, M did not appeal said judgment, nor
did he file a motion for new trial or a motion for reconsideration. The period to appeal
lapsed and N, the plaintiff, received a copy of the entry of judgment, rendering the
judgment final and executory. N filed a motion for execution which the court denied even
without any opposition from M. Discuss if the court is correct in denying the motion for
execution. (5%)

No, the order of the court denying the motion for execution is not proper. Rules of Court
provides that execution is a matter of right upon the finality of the judgment or final order and on
motion. In the case at bar, when the judgment against M became final and executory, N became
entitled to execution of such judgment as a matter of right.
12. A filed an action for recovery of Php5.0 Million from B. In his answer, B denied the
material allegations of the complaint and put up payment of the debt as an affirmative
defense. B thereafter filed a motion to set his affirmative defense for hearing which the
court peremptorily denied. Discuss the propriety and correctness of the order of denial of
B's motion. (5%)

The order of denial of B’s motion to set the affirmative defense for hearing is proper because
Rule 15, Section 12 of the Rules of Court provides that a motion to hear affirmative defenses
is a prohibited motion.

13. O received on December 15, 2020, a copy of the decision of the court adjudging him
liable and ordering him to pay Php5.0 Million, plus legal interest. On January 5, 2021, P
filed a motion for reconsideration of the judgment. After receipt of O's opposition, the
court denied the motion for reconsideration of P. Within fifteen (15) days from receipt of
the order of denial of his motion for reconsideration, P filed a special civil action for
certiorari via a petition with the Court of Appeals, arguing that the trial court committed
grave abuse of discretion amounting to lack or in excess of jurisdiction. Discuss whether
or not the petition will prosper. (5%)

The action will prosper. The CA has jurisdiction to entertain petitions for certiorari if the trial court
acted with grave abuse of discretion amounting to lack or excess of jurisdiction, in the present
case P properly filed the petition the appropriate higher court within 15 days from the order
denying the motion for reconsideration.
CONCEPTS

1. What is the doctrine of immutability of judgments? (5%)

It provides that a judgment that has attained finality shall become immutable and unalterable. It
may no longer be modified in any respect, no matter how erroneous it may be.

2. What is bar by prior judgment? (5%)

It is the doctrine of res judicata which bars a second action when there is identity of parties,
subject matter and cause of action.

3. What is a terceria? (5%)

It is a claim made by a third party to an action over a property taken by writ of execution under
Rule 39, writ of preliminary attachment under Rule 57, or replevin under Rule 60.

4. What is a temporary restraining order? (5%)

It is an order issued as a restraint to the defendant to preserve the status quo and is granted
until the hearing of an application for preliminary injunction can be held.

5. What is the harmless error rule? (5%)

It states that no error in either the admission or the exclusion of evidence and no error or defect
in any ruling or order or in anything done or omitted by the trial court or by any of the parties is
ground for granting a new trial or for setting aside, modifying, or otherwise disturbing a judgment
or order, unless refusal to take such action appears to the court inconsistent with substantial
justice. The court at every stage of the proceeding must disregard any error or defect which
does not affect the substantial rights of the parties.

6. Writ of possession and writ of demolition

A writ of possession is "a writ of execution employed to enforce a judgment to recover the
possession of land. It commands the sheriff to enter the land and give possession of it to the
person entitled under the judgment.

This court order is typically issued to enforce the right of a party to gain possession or control of
a property. It is commonly used in cases involving real estate, such as eviction proceedings or
when the court awards possession of a property to a prevailing party. The writ of possession
allows the rightful owner or winning party to take physical control and possession of the
property, often with the assistance of law enforcement or court officers.
A writ of demolition, on the other hand, is a court order that authorizes the tearing down,
removal, or destruction of structures, buildings, or properties. It is usually issued when there's a
court decision or order that mandates the removal of a structure or part of a property, often due
to legal violations, non-compliance with regulations, or as a consequence of a court judgment.

While both writs involve court-ordered actions concerning properties, a writ of possession
focuses on securing physical possession or control of a property, while a writ of demolition
pertains to the authorized destruction or removal of structures or properties as mandated by a
court decision. Each serves a different purpose and carries out distinct legal actions concerning
properties under court jurisdiction.

7. Specie of writ of preliminary attachment (writ of garnishment)

Garnishment is an act of appropriation by the court when property of debtor is in the
hands of third persons. It is a species of attachment for reaching any property or credits
pertaining or payable to a judgment debtor.
Attachment refers to corporeal property in the possession of the judgment debtor.

8. Preliminary Injuction

A preliminary injunction is an order granted at any stage of an action or proceeding prior to

the judgment or final order, requiring a party or a court, agency or a person to refrain from a
particular act or acts. It may also require the performance of a particular act or acts, in which
case it shall be known as a preliminary mandatory injunction.
TRUE OR FALSE

1. A writ of execution may be issued by TC without a motion filed by prevailing party.

False/// true? Rule 39. The court may issue this upon its own initiative.

2. In an auction sale in a real estate levied on execution, is there a right of

redemption or equity of redemption that must be exercised by the judgement
obligor within 1 year from registration of COS?
Answer: yes. Rule 39 sec 28.
right of redemption.

3. Which court has jurisdiction over a forcible entry or unlawful detainer cases which
are subject to the rule on summary procedure?

Answer:
1st level courts. Metc,mtc,mctc

It is settled that forcible entry and unlawful detainer cases are within the exclusive original
jurisdiction of the MTC. Moreover, all cases decided by the MTC are generally appealable
to the RTC irrespective of the amounts involved. (Sec. 22, B.P. 129)

An Act Expanding the Jurisdiction of the Metropolitan Trial Courts, Municipal Trial Courts, and
Municipal Circuit Trial Courts, Amending for the Purpose Batas Pambansa Blg. 129 [BP 129]
(Judiciary Reorganization Act of 1980), March 25, 1994.
sec. 33. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit
Trial Courts in Civil Cases. - Metropolitan Trial Courts, Municipal Trial Courts, and Municipal
Circuit Trial Courts shall exercise:

(2) Exclusive original jurisdiction over cases of forcible entry and unlawful detainer x x x
(3) Exclusive original jurisdiction in all civil actions which involve title to, or possession of, real
property, or any interest therein where the assessed value of the property or interest therein
does not exceed Twenty thousand pesos (P20,000.00) or, in civil actions in Metro Manila, where
such assessed value does not exceed Fitly thousand pesos (P50,000.00) exclusive of interest,
damages of whatever kind, attorney's foes, litigation expenses and costs: Provided, That in
cases of land not declared for taxation purposes, the value of such property shall be determined
by the assessed value of the adjacent lots.

4. May an action under R47 be taken cognizance of by both CA and RTC?

Yes./// no. action under rule 47 cannot be taken by both CA and RTC. only CA- Exclusive and
orig jurisdiction.
BP 129 Section 9. Jurisdiction. – The Court of Appeals shall Exercise:
2. Exclusive original jurisdiction over actions for annulment of judgements of Regional
Trial Courts; and rule 47 sec 10.

5. Property exempt from execution (last paragraph)— Whether a family home built
from a loan secured by real estate mortgage is exempt in case of foreclosure of
mortgage?

Gr: true Yes ba to?? Kasi nasa roc. Pero idk lang if built sa proceeds ng loan kung
exempt.

6. R43, does it cover a petition for review of decisions of NLRC?

No.R65 petition for certiorari//// true

“Curiously, although the 10-day period for finality of the decision of the NLRC may already
have lapsed as contemplated in Section 223 of the Labor Code, it has been held that
this Court may still take cognizance of the petition for certiorari on jurisdictional and
due process considerations if filed within the reglementary period under Rule
65 (St. Martin Funeral Home v. NLRC, G.R. No. 130866 September 16, 1998).”

7. May a writ of execution be enforced by mere motion within 10 years from

issuance?

false.
The rules are clear. Once a judgment becomes final and executory, the prevailing party
can have it executed as a matter of right by mere motion within five years from the date of
entry of judgment. If the prevailing party fails to have the decision enforced by a motion after the
lapse of five years, the said judgment is reduced to a right of action which must be enforced by
the institution of a complaint in a regular court within ten years from the time the judgment
becomes final.

R39 Section 6. Execution by motion or by independent action. — A final and executory

judgment or order may be executed on motion within five (5) years from the date of its
entry. After the lapse of such time, and before it is barred by the statute of limitations, a
judgment may be enforced by action. The revived judgment may also be enforced by motion
within five (5) years from the date of its entry and thereafter by action before it is barred by the
statute of limitations
Against whom issued: Execution can only issue against a party and not against one who
never had his day in court (Green Arces Holdings, Inc. v. Cabral, G.R. No. 175542, June 5,
2013).

Writ of Execution

A judicial writ issued to an officer authorizing him to enforce the judgment of the court in
accordance with Rule 39.
General Rule for the Validity of A Writ of Execution:
1.It must conform strictly to the decision or judgment which gives it life;
2.It must conform strictly to every essential particular of the judgment promulgated, and may not
vary the terms of the judgment it seeks to enforce, nor may it go beyond the terms of the
judgment sought to be executed;
3.It must conform to the dispositive portion of the decision to be executed (De Leon v. Public
Estates Authority G.R. No. 181970, August 3, 2010).

*although pwede rin true kasi after the initial 5 years following the entry of woe, its enforceability
can be extended by another 5 years by billing a motion for revival of judgment. R39 sec 6

8. R65, S1— there must be an allegation that the court acted without jurisdiction or
with lack or excess of jurisdiction, or with grave abuse of discretion.

TRUE. Basis: Rule 65, Section 1.

9. R45 petition for review to the SC— may questions of fact and law may be raised in
the petition?

False. GR: Rule 45, Section 1 provides that a petition for review under Rule 45 may only raise
questions of law which must be distinctly set forth. Xpn: under certain exceptional
circumstances (ex: GAD, when LC draws an erroneous conclusion based on erroneous fact,
LCs finding unsupported by evidence, when there afe conflicting findings)

10. 15 day period to appeal is extendible

True. Rules 42, 43 and 45 provide that appeals and petition for review filed under these rules
may be extended provided that the motion for extension is filed before the expiration of the
original reglementary period and upon full payment of the docket and other lawful fees and
deposit for costs.

GR. No rule 41 sec. 3

ESSAY POINTERS BY RSE

essay (60%; 12 questions; 5 pts each)

1. Can a Writ of attachment be issued ex parte? No need for notice to the adverse party?
- GR: No. xpn: davao light and power co inc. v CA
2. Is a motion for extension to file a motion for reconsideration within the period to file
appeal an appropriate motion? If the motion for extension has been filed but at the same
time the party against whom the judgement has been rendered files a notice of appeal?
Propriety of filing MR and propriety of filing appeal. Can you still file it?
- Rule 41, Section 3 provides that no motion for extension of time to file motion for
reconsideration shall be allowed
3. Notice of appeal from MTC to RTC is it extendible?
- Generally. As provided under rule 40 sec 3, No. the 15 day period to appeal a
judgment or final order of MTC to RTC is not extendible except when rule 41,
showing good and sufficient cause and the payment of docket and other lawful
fees (RTC to other courts to)
- There are instances when the MTC upon its discretion grant extension
considering compelling circumstances, substantial justice, and equitable
considerations.
4. On the issuance of Writ of PI, remember the case of Evy Case. A writ of PI cannot be
issued without notice and hearing. What is allowed to be issued without such is 72-hr
TRO
- PI (need ng notice and hearing)
5. What is the remedy from a decision or resolution of Sec of Justice finding probable
cause and therefore reversing the resolution of prosecution dismissing the complaint for
lack of probable cause? Is it R43 or 65?
- Petition for certiorari under rule 65 alleging the decisions of the secretary of
justice on the ground of grave abuse of discretion amounting to lack or excess of
jurisdiction. Petitioner must establish that the decision is rendered capriciously,
whimsically, or in a manner beyond the scope of their authority.
6. Remedy available from the order denying a motion for judgement on the pleadings? Is
R65 an available remedy?
- An order denying a judgment on the pleadings is an interlocutory order and not a
final judgment. Therefore, r65 which is generally reserved for challenging final
judgments, resolutions, or orders issued with GAD is not a proper and available
remedy.
- Proper remedies re, responsive pleading, motion for recon, proceeding to trial.
7. In case a favorable judgment has been rendered in favor of plaintiff and the defendant
did not appeal nor file an MR or MNT and the appeal period had lapsed, plaintiff then
filed a motion for execution without opposition filed by defendant and the court denies
the motion for execution, is the denial proper?
- The denial would be improper because the judgment becomes final upon the
lapse of period within which to file an appeal and the right to execute the
judgment becomes a matter of right on the part of the plaintiff.
- When the denial is without a proper basis, the plaintiff may seek the remedy of
filing a motion for recon or elevating it to the higher court through
certiorari/mandamus depending upon the circumstance.

8. Distinguish R41 and 42. Ordinary appeal; from decision of RTC in original jurisdiction:
r41; Not an ordinary appeal: r42

R41- ordinary appeal to the CA for the decisions of the RTC in its original jurisdiction
through appeal under r41by notice of appeal.

R42 - Petition for review the decisions of RTC to the CA in its appellate jurisdiction by
petition for review under r42.

9. Belated filing of appellant’s brief. May the appeal be given due course despite the failure
to file on time appellants brief.
- Generally R44 provides that an appellants brief must be timely pefiled to perfect
an appeal. However, under r50, it allows the court to exercise discretion for
extending the filing of an appellants brief which shall not exceed 30 days for each
motion subject to certain conditions as prescribed by the rules. (valid and
justifiable reason)

10. City of Manila v. Grecia case on when R65 may be treated as R43
- City of Manila v. Grecia-Cuerdo, G.R. No. 175723, February 4, 2014
In accordance with the liberal spirit pervading the Rules of Court and in the
interest of substantial justice, this Court has, before, treated a petition for
certiorari as a petition for review on certiorari, particularly (1) if the petition for
certiorari was filed within the reglementary period within which to file a
petition for review on certiorari; (2) when errors of judgment are averred;
and (3) when there is sufficient reason to justify the relaxation of the rules.
Considering that the present petition was filed within the 15-day reglementary
period for filing a petition for review on certiorari under Rule 45, that an error of
judgment is averred, and because of the significance of the issue on jurisdiction,
the Court deems it proper and justified to relax the rules a

11. Rule 38— take note of the periods on R38, S6 (60-day and 6-month periods) Grounds:
FAME + Affidavit of merit
- Available after judgment has become final and executory. This applies to
judgments, final orders, and other proceedings, alleged on the ground of FAME
though a verified petition.
- Filed within 60 days from KNOWLEDGE of judgment and 6 moths from entry of
judgment.
- If denied, petition for relief is NOT appealable and the proper remedy us rule 65
petition.
12. In a labor case which was filed by plaintiff in the RTC, the defendant employer files a
MTD arguing that the RTC does not have jurisdiction over claims for unpaid salary, OT
paid, leave benefits pay, and attendant damages. MTD was denied. What is the remedy
if the MTD for lack of jurisdiction was denied by RTC?
- This being an interlocutory order, the remedy would be to file a MR before the
same court or petition for certiorari under rule 65 alleging GAD. or when a final
judgment has been rendered, this may be included in an appeal of the final
judgment.