1.-j.-mdeleon-updates-in-civil-procedure.pdf

UPDATES IN CIVIL PROCEDURE - 2019Justice Magdangal M. de Leon

JURISDICTION Estoppel and laches will bar a party from questioning the court’s jurisdiction The MCTC had both jurisdictions over the person of the defendant or respondent and over the subject matter of the claim. On the former, it is undisputed that the MCTC duly acquired jurisdiction over the persons of the spouses Sanchez as they are the ones who filed the Forcible Entry suit before it. On the latter, Republic Act No. 7691 (R.A. No. 7691) clearly provides that the proper Metropolitan Trial Court (MeTC), MTC, or Municipal Circuit Trial Court (MCTC) has exclusive original jurisdiction over ejectment cases, which includes unlawful detainer and forcible entry. Despite this, the Spouses Sanchez insist that the MCTC could not have had jurisdiction over the disputed land area in excess of their 600- square-meter lot It bears stressing that the Spouses Sanchez explicitly brought the subject matter to the jurisdiction of the MCTC. They cannot now deny such jurisdiction simply because said court did not rule in their favor. Thus, the issue of whether the MCTC erred in dismissing the forcible entry complaint, ruling that the heirs of Aguilar were in actual physical possession over the subject property should have been raised by the Spouses Sanchez in an appeal before the RTC. But as the records reveal, the spouses did not do anything to question the decision of the MCTC, merely allowing the same to attain finality. In fact, the sheriff had already started its execution. Moreover, without even providing any explanation for their delay, it was only on May 22, 2010, or four (4) years after the. issuance ofthe MCTC ruling on June 7, 2006, that the spouses filed the instant Complaint for Annulment of Judgment. On this matter, the Court must emphasize that an action for annulment of judgment based on lack of jurisdiction must be brought before the same is barred by laches or estoppel. Laches is the failure or neglect for an unreasonable and unexplained length of time to do that which by exercising due diligence could nor should have been done earlier; it is negligence or omission to assert a right within a reasonable time, warranting a presumption that the party entitled to assert it either has abandoned it or declined to assert it. On the other hand, estoppel precludes a person who has admitted or made a representation about something as true from denying or disproving it against anyone else relying on his admission or representation. The failure on the part of the Spouses Sanchez to file either an appeal of the MCTC Decision or the instant complaint for annulment of judgment for an unreasonable and unexplained length of time, four ( 4) years to be exact, despite receiving notice and knowledge of the said decision, constitutes laches that necessarily barred their cause. Considerations of public policy and sound practice demand that the rights and obligations of every litigant must not hang in suspense for an indefinite period of time. (Spouses Sanchez vs. Divinagracia, G.R. No. 228680, September 17, 2018)

A complaint primarily seeking to enforce the accessory obligation contained in the penal clause is actually an action for damages capable of pecuniary estimation. The party who unilaterally terminated the exclusive distributorship contract without any legal justification can be held liable for damages by reason of the breach committed pursuant to Article 1170. True, breach of contract may give rise to a complaint for specific performance or rescission of contract. In which case, the subject matter is incapable of pecuniary estimation and, therefore, jurisdiction is lodged with the RTC. However, breach of contract may also be the cause of action in a complaint for damages. Thus, it is not correct to immediately conclude, as the CA erroneously did, that since the cause of action is breach of contract, the case would only

-2either be specific performance or rescission of contract because it may happen, as in this case, that the complaint is one for damages. In an action for damages, the court which has jurisdiction is determined by the total amount of damages claimed Under Paragraph 8, Section 19 of BP 129, as amended by Republic Act No. 7691, where the amount of the demand exceeds ₱400,000.00, exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses, and costs, exclusive jurisdiction is lodged with the RTC. Otherwise, jurisdiction belongs to the Municipal Trial Court. Then in Administrative Circular No. 09-94, this Court declared that "where the claim for damages is the main cause of action, or one of the causes of action, the amount of such claim shall be considered in determining the jurisdiction of the court." In other words, where the complaint primarily seeks to recover damages, all claims for damages should be considered in determining which court has jurisdiction over the subject matter of the case regardless of whether they arose from a single cause of action or several causes of action. Since the total amount of the damages claimed by the respondent in its Complaint filed with the RTC on September 3, 2012 amounted only to ₱280,000.00, said court was correct in refusing to take cognizance of the case. (Pajares vs. Remarkable Laundry and Dry Cleaning, G.R. No. 212690, February 20, 2017)

Jurisdiction depends on nature of the action If it is primarily for the recovery of a sum of money, the claim is considered capable of pecuniary estimation, and whether jurisdiction is in the municipal courts or in the RTCs would depend on the amount of the claim. But where the basic issue is something other than the right to recover a sum of money, where the money claim is purely incidental to, or a consequence of, the principal relief sought, this Court has considered such actions as cases where the subject of the litigation may not be estimated in terms of money, and, hence, are incapable of pecuniary estimation. These cases are cognizable exclusively by RTCs. The course of action embodied in the complaint by the present petitioners’ predecessor, Alfredo R. Bautista, is to enforce his right to repurchase the lots he formerly owned pursuant to the right of a free-patent holder under Sec. 119 of CA 141 or the Public Land Act. The Court rules that the complaint to redeem a land subject of a free patent is a civil action for specific perfomance and hence incapable of pecuniary estimation. which is cognizable by the RTC. (Bautista vs. Lindo, G.R. No. 208232, March 10, 2014) When primary relief is to recover ownership of real property, jurisdiction belongs to either RTC or MTC, depending on assessed value of the property In its Order, the RTC declared that the MTC has no jurisdiction over the subject matter of the case based on the supposition that the same is incapable of pecuniary estimation. Thus, following Section 8, Rule 40 of the Rules of Court, it took cognizance of the case and directed the parties to adduce further evidence if they so desire. However, in her complaint in the MTC (for reconveyance of property and declaration of nullity of title), petitioner prayed that Monzon be ordered to reconvey the portion of the property which she claimed was fraudulently included in Monzon’s title. Her primary relief was to recover ownership of real property. Indubitably, petitioner’s complaint involves title to real property. An action "involving title to real property," was defined as an action where "the plaintiff’s cause of action is based on a claim that she owns such property or that she has the legal rights to have exclusive control, possession, enjoyment, or disposition of the same." Under Sections 19 and 33 of Batas Pambansa Blg. (BP) 129, as amended by Republic Act (RA) No. 7691, in cases involving title to real property, original and exclusive jurisdiction belongs to either the RTC or the MTC, depending on the assessed value of the subject property. Here the assessed value is only P12,400.00. (Maslag vs. Monzon, G.R. No. 174908, June 17, 2013)

MTC has jurisdiction over cancellation of title From the Complaint, the case filed by respondent is not simply a case for the cancellation of a particular certificate of title and the revival of another. The determination of such issue merely

-3follows after a court of competent jurisdiction shall have first resolved the matter of who between the conflicting parties is the lawful owner of the subject property and ultimately entitled to its possession and enjoyment. The action is, therefore, about ascertaining which of these parties is the lawful owner of the subject lot, jurisdiction over which is determined by the assessed value of such lot. The Court has already held that a complaint must allege the assessed value of the real property subject of the complaint or the interest thereon to determine which court has jurisdiction over the action. In the case at bar, the only basis of valuation of the subject property is the value alleged in the complaint that the lot was sold by Lorna to petitioner in the amount of P4,000.00. No tax declaration was even presented that would show the valuation of the subject property. In fact, in one of the hearings, respondents’ counsel informed the court that they will present the tax declaration of the property in the next hearing since they have not yet obtained a copy from the Provincial Assessor’s Office. However, they did not present such copy. To reiterate, where the ultimate objective of the plaintiffs is to obtain title to real property, it should be filed in the proper court having jurisdiction over the assessed value of the property subject thereof. Since the amount alleged in the Complaint by respondents for the disputed lot is only P4,000.00, the MTC and not the RTC has jurisdiction over the action. Therefore, all proceedings in the RTC are null and void . (Padlan vs. Dinglasan, G.R. No. 180321, March 20, 2013)

When is a litigant estopped from assailing the jurisdiction of a tribunal? Even if we treat the present action as one involving title to real property or an interest therein which falls under the jurisdiction of the first level court under Sec. 33 of BP 129, as the total selling price is only PhP 16,000 way below the PhP 20,000 ceiling, still, the postulation of respondents that MTC has jurisdiction will not hold water. This is because respondents have actually participated in the proceedings before the RTC and aggressively defended their position, and by virtue of which they are already barred to question the jurisdiction of the RTC following the principle of jurisdiction by estoppel. Here, we note that aside from the belated filing of the motion to dismiss––it having been filed nine (9) years from the filing of the complaint––respondents actively participated in the proceedings Having fully participated in all stages of the case, and even invoking the RTC’s authority by asking for affirmative reliefs, respondents can no longer assail the jurisdiction of the said trial court. Simply put, considering the extent of their participation in the case, they are, as they should be, considered estopped from raising lack of jurisdiction as a ground for the dismissal of the action. (Bautista vs. Lindo, G.R. No. 208232, March 10, 2014) Estoppel by laches – when applicable As a general rule, lack of jurisdiction over the subject matter may be raised at any time, or even for the first time on appeal An exception to this rule is the principle of estoppel by laches. Estoppel by laches may only be invoked to bar the defense of lack of jurisdiction if the factual milieu is analogous to Tijam v. Sibonghanoy. In that case, lack of jurisdiction was raised for the first time after almost fifteen (15) years after the questioned ruling had been rendered and after the movant actively participated in several stages of the proceedings. It was only invoked, too, after the CA rendered a decision adverse to the movant. In Figueroa v. People, we ruled that the failure to assail jurisdiction during trial is not sufficient for estoppel by laches to apply. When lack of jurisdiction is raised before the appellate court, no considerable length of time had elapsed for laches to apply. Laches refers to the "negligence or omission to assert a right within a reasonable length of time, warranting a presumption that the party entitled to assert it either has abandoned it or declined to assert it." (Erorita vs. Dumlao, G.R. No. 195477, January 25, 2016) Tijam and related cases apply only when issue raised is jurisdiction over subject matter The aspect of jurisdiction which may be barred from being assailed as a result of estoppel by laches is jurisdiction over the subject matter. In Tijam and related cases, the Supreme Court barred the attack on the jurisdiction of the respective courts concerned over the subject matter of the case based on estoppel by laches, declaring that parties cannot be allowed to belatedly

-4adopt an inconsistent posture by attacking the jurisdiction of a court to which they submitted their cause voluntarily Here, what respondent was questioning in her motion to dismiss before the trial court was the court’s jurisdiction over the person of defendant Manuel.since there was no valid service of summons upon him, precisely because he was already dead even before the complaint against him and his wife was filed in the trial court. Thus, the principle of estoppel by laches finds no application in this case. What should apply are Rule 9, Section 1 and Rule 15, Section 8. Since the defense of lack of jurisdiction over the person of a party to a case is not one of those defenses which are not deemed waived under Section 1 of Rule 9, such defense must be invoked when an answer or a motion to dismiss is filed in order to prevent a waiver of the defense. If the objection is not raised either in a motion to dismiss or in the answer, the objection to the jurisdiction over the person of the plaintiff or the defendant is deemed waived by virtue of the first sentence of Section 1 of Rule 9. (Boston Equity Resources, Inc. vs Court of Appeals, G.R. No. 173946, June 19, 2013)

Jurisdiction over intra-corporate controversies Jurisdiction over the cases enumerated under Section 5 of PD 902-A, collectively known as intra-corporate controversies or disputes, now falls under the jurisdiction of the RTCs. In short, jurisdiction over intra-corporate controversies is transferred by law (RA 8799) from the SEC to the RTCs in general, but the authority to exercise such jurisdiction is given by the Supreme Court, in the exercise of its rule-making power under the Constitution, to RTCs which are specifically designated as Special Commercial Courts. On the other hand, the cases enumerated under Section 19 of BP 129, as amended, are taken cognizance of by the RTCs in the exercise of their general jurisdiction. Based on the allegations in petitioner's Complaint, in relation to the above provisions of law, there is no dispute that the case falls under the jurisdiction of the RTC. However, whether or not the RTC shall take cognizance of the case in the exercise of its general jurisdiction, or as a special commercial :court, is another matter. In resolving this issue, what needs to be determined, at the first instance, is the nature of petitioner's complaint. Is it an ordinary civil action for collection, specific performance and damages as would fall under the jurisdiction of regular courts or is it an intra-corporate controversy or of such nature that it is required to be heard and tried by a speciaJ commercial court? In determining whether a dispute constitutes an intra-corporate controversy, the Court uses two tests, namely, the relationship test and the nature of the controversy test. Applying the above tests, the Court finds, and so holds, that the case is not an intra-corporate dispute and, instead, is an ordinary civil action. There are no intra-corporate relations between the parties. Petitioner is neither a stockholder, partner, member or officer of respondent corporation. The parties' relationship is limited to that of an investor and a securities broker. Moreover, the questions involved neither pertain to the parties' rights and obligations under the Corporation Code, if any, nor to matters directly relating to the regulation of the corporation.(Yu vs. RCBC Securities, G.R. No. 219491, October 17, 2018)

A judgment rendered without due process is void ab initio Ventura was not properly notified of the instant proceedings. This fact alone is a denial of her right to due process which the Court deems necessary to correct. It is well settled that a judgment or decision rendered without due process is void ab initio and may be attacked at anytime directly or collaterally by means of a separate action, or by resisting such decision in any action or proceeding where it is invoked for such judgment or decision is regarded as a "lawless thing which can be treated as an outlaw and slain at sight, or ignored wherever it exhibits its head." As the CA noted, the action filed by Orlina is a petition seeking the cancellation of Ventura's title and the issuance of a new one under his name,brought under the auspices of Sections 75 and 108 of Presidential Decree (P.D.) No. 1529; otherwise known as the Property Registration Decree,which is evidently an action in rem. While jurisdiction over the parties in an action in rem is not a prerequisite to confer jurisdiction on the court, it is nonetheless required to satisfy the requirements of due process.

-5In view thereof, We find that the CA aptly held that the order of the RTC of general default, allowing Orlina to adduce evidence ex parte is void for violating Ventura's right to due process. Similarly, the May 14, 2012 Decision of said trial court, which granted Orlina's petition for approval of deed of sale and the transfer of the titles in his name, and all subsequent orders issued pursuant to the said judgment. are also null and void. (Orlina vs. Ventura, G.R. No. 227033, December 3, 2018)

Reconveyance and annulment of title is within the jurisdiction of the Regional Trial Court The Spouses Aboitiz argue that Branch 55, Regional Trial Court did not have jurisdiction to nullify the final and executory Decision of Branch 28, Regional Trial Court in LRC Case No. N208. They claim that that it is the Court of Appeals that has jurisdiction to annul judgments of the Regional Trial Court. However, the instant action is not for the annulment of judgment of a Regional Trial Court. It is a complaint for reconveyance, cancellation of title, and damages. A complaint for reconveyance is a remedy where the plaintiff argues for an order for the defendant to transfer its title issued in a proceeding not otherwise invalid. The relief prayed for may be granted on the basis of intrinsic rather than extrinsic fraud; that is, fraud committed on the real owner rather than fraud committed on the procedure amounting to lack of jurisdiction. An action for annulment of title, on the other hand, questions the validity of the grant of title on grounds which amount to lack of due process of law. The remedy is premised in the nullity of the procedure and thus the invalidity of the title that is issued. Title that is invalidated as a result of a successful action for annulment against the decision of a Regional Trial Court acting as a land registration court may still however be granted on the merits in another proceeding not infected by lack of jurisdiction or extrinsic fraud if its legal basis on the merits is properly alleged and proven. Considering the Spouses Aboitiz's fraudulent registration without the Spouses Po's knowledge and the latter's assertion of their ownership of the land, their right to recover the property and to cancel the Spouses Aboitiz' s title, the action is for reconveyance and annulment of title and not for annulment of judgment. Thus, the Regional Trial Court has jurisdiction to hear this case. (Sps. Aboitiz vs. Sps. Po, G.R. No. 298450, June 5, 2017)

PARTIES An indispensable party is the party whose legal presence in the proceeding is so necessary that "the action cannot be finally determined" without him or her because his or her interests in the matter and in the relief "are so bound up with that of the other parties.‖ The property owners against whom the action for reconveyance is filed are indispensable parties. No relief can be had, and the court cannot render a valid judgment, without them. The property has been sold to respondents Jose, Ernesto, and Isabel. Thus, they are indispensable parties. However, the seller of the property is not an indispensable party. The Mariano Heirs, as the alleged sellers of the property, are not indispensable parties. They are at best necessary parties, which are covered by Rule 3, Section 8 of the Rules of Court. (Sps. Aboitiz vs. Sps. Po, G.R. No. 298450, June 5, 2017)

In a suit filed by the contractor against the insurance company, the sub-contractor is not an indispensable party Records show that when respondent DMI, the sub-contractor, secured the surety and performance bonds from respondent insurance company in compliance with petitioner contractor’s requirement, respondent bound itself "jointly and severally" with DMI for the damages and actual loss that petitioner may suffer should DMI fail to perform its obligations under the Agreement. The term "jointly and severally" expresses a solidary obligation granting petitioner, as creditor, the right to proceed against its debtors, i.e., respondent or DMI. The nature of the solidary obligation under the surety does not make one an indispensable

-6party. An indispensable party is a party-in-interest without whom no final determination can be had of an action, and who shall be joined mandatorily either as plaintiffs or defendants. The presence of indispensable parties is necessary to vest the court with jurisdiction, thus, without their presence to a suit or proceeding, the judgment of a court cannot attain real finality. The absence of an indispensable party renders all subsequent actions of the court null and void for want of authority to act, not only as to the absent parties but even as to those present. In this case, DMI is not an indispensable party because petitioner can claim indemnity directly from respondent, having made itself jointly and severally liable with DMI for the obligation under the bonds. Therefore, the failure to implead DMI is not a ground to dismiss the case, even if the same was without prejudice.1âwphi1 Moreover, even on the assumption that DMI was, indeed, an indispensable party, the RTC committed reversible error in dismissing the complaint. Failure to implead an indispensable party is not a ground for the dismissal of an action, as the remedy in such case is to implead the party claimed to be indispensable, considering that parties may be added by order of the court, on motion of the party or on its own initiative at any stage of the act. (Living @ Sense, Inc. vs. Malayan Insurance Company, Inc., G.R. No. 193753, September 26, 2012) VENUE Personal action and real action The case should not be dismissed. The case was a PERSONAL ACTION; hence, venue was properly laid. The case, being for the declaration of the nullity of a contract of loan and its accompanying continuing surety agreement, and the real estate and chattel mortgages, was a personal action; hence, its filing in Cebu City, the place of business of one of the plaintiffs (XM Corporation), was correct under Section 2, Rule 4 of the Rules of Court. BPI, however, contends that the case was a real action that should be commenced and tried in the proper court having jurisdiction over the area wherein the real property involved, or a portion thereof, was situated; and that consequently the filing and docket fees for the complaint should be based on the value of the property as stated in the certificate of sale attached thereto. According to Section 1, Rule 4 of the Rules of Court, a real action is one that affects title to or possession of real property, or an interest therein. Such action is to be commenced and tried in the proper court having jurisdiction over the area wherein the real property involved, or a portion thereof, is situated, which explains why the action is also referred to as a local action. In contrast, the Rules of Court declares all other actions as personal actions. Such actions may include those brought for the recovery of personal property, or for the enforcement of some contract or recovery of damages for its breach, or for the recovery of damages for the commission of an injury to the person or property. The venue of a personal action is the place where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, or in the case of a non-resident defendant where he may be found, at the election of the plaintiff, for which reason the action is considered a transitory one. (Bank of the Philippine Islands vs. Hontanosas, G.R. No. 15761325, January 25, 2014)

According to Section 1, Rule 4 of the Rules of Court, a real action is one that affects title to or possession of real property, or an interest therein. Thus, an action for partition or condemnation of, or foreclosure of mortgage on, real property is a real action. On the other hand, the Rules of Court declares all other actions as personal actions. Based on the distinctions between real and personal actions, an action to recover the deficiency after the extrajudicial foreclosure of the real property mortgage is a personal action, for it does not affect title to or possession of real property, or any interest therein. The venue of a personal action is the place where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, or in the case of a nonresident defendant where he may be found, at the election of the plaintiff, for which reason the action is considered a transitory one. Since the Bank’s principal office is located in Makati, the venue is properly laid. Assuming arguendo that the venue was improperly laid, in civil

-7proceedings, venue is procedural, not jurisdictional, and it may be waived by the defendant if not seasonably raised either in a motion to dismiss or in the answer. Hence, assuming the venue was improperly laid, respondent is deemed to have waived the improper venue when it failed to raise it in his motion to dismiss (BPI Family Savings Bank, Inc. v. Yujuico, G.R. No. 175796, July 22, 2015). Venue for complaint for specific performance – Section 2, Rule 4 will apply Complaint for specific performance with RTC of Imus, Cavite to compel petitioners to exeute a deed of absolute sale of a lot situated in Makati. Although the end result of respondent’st claim was the transfer of the property to his name, the suit was still essentially for specific performance, a personal action, because it sought Fernando’s execution of a deed of sale based on a contract which he had previously made. Since respondent resides in Imus, Cavite, the filing of his case with the RTC of Imus is proper. (Sps. Saraza vs. Francisco, G. R. No. 198718, November 27, 2013)

The venue of the action for the nullification of the foreclosure sale is properly laid with the Malolos RTC although two of the properties together with the Bulacan properties are situated in Nueva Ecija. The venue of real actions affecting properties found in different provinces is determined by the SINGULARITY or PLURALITY of the transactions involving said parcels of land. Where said parcels are the object of one and the same transaction, the venue is in the court of any of the provinces wherein a parcel of land is situated (United Overseas Bank Phils. (formerly Westmont Bank) vs. Rosemoore Mining & Development Corp., G.R. Nos. 159669 & 163521, March 12, 2007).

Venue stipulations in a contract do not, as a rule, supersede the general rule set forth in Rule 4 of the Revised Rules of Court in the absence of qualifying or restrictive words. They should be considered merely as an agreement or additional forum, not as limiting venue to the specified place. (Pacific Consutants International Asia, Inc. vs. Schonfeld, G.R. No. 166920, February 19, 2007)

Exclusive venue stipulation not applicable to extrajudIcial foreclosure The case at bar involves petitioners’ mortgaged real property located in Parañaque City over which respondent bank was granted a special power to foreclose extra-judicially. Thus, by express provision of Section 2, Act 3135, the sale can only be made in Parañaque City. The exclusive venue of Makati City, as stipulated by the parties and sanctioned by Section 4, Rule 4 of the Rules of Court, cannot be made to apply to the Petition for Extrajudicial Foreclosure filed by respondent bank because the provisions of Rule 4 pertain to venue of actions, which an extrajudicial foreclosure is not. (Sps. Ochoa vs. China Banking Corporation, G.R. No. 192877, March 23, 2011) Complaint for unlawful detainer may be filed outside the municipality or city where the real property is located, pursuant to the venue stipulation in the contract Maunlad Homes questioned the venue of Union Bank’s unlawful detainer action which was filed in Makati City while the contested property is located in Malolos, Bulacan. Citing Section 1, Rule 4 of the Rules of Court, Maunlad Homes claimed that the unlawful detainer action should have been filed with the municipal trial court of the municipality or city where the real property involved is situated. Union Bank, on the other hand, justified the filing of the complaint with the MeTC of Makati City on the venue stipulation in the contract which states that "the venue of all suits and actions arising out of or in connection with this Contract to Sell shall be at Makati City." While Section 1, Rule 4 of the Rules of Court states that ejectment actions shall be filed in "the municipal trial court of the municipality or city wherein the real property involved x x x is situated," Section 4 of the same Rule provides that the rule shall not apply "where the parties have validly agreed in writing before the filing of the action on the exclusive venue thereof.‖ (Union Bank of the Philippines vs. Maunlad Homes Inc., G.R. No. 190071, August 15, 2012)

-8With the undated lease contract definitely settled as absolutely simulated, and hence, void, there can be no invocation of the exclusive venue stipulation on the part of either party; thus, the general rule on the filing of real actions in the court where the property is situated prevails – as in the filing of the first ejectment complaint before the MCTCNabunturan-Mawab located in Compostela Valley, same as the subject property of this case. (De Leon vs. Dela Llana, G.R. No. 212277, February 11, 2015 ACTIONABLE DOCUMENT Failure to specifically deny under oath the genuiness and due execution of an actionable document results in its admission Petitioners failed to deny specifically under oath the genuineness and due execution of the Acknowledgment in their Answer. The effect of this is that the genuineness and due execution of the Acknowledgment is deemed admitted., "There is no need for proof of execution and authenticity with respect to documents the genuineness and due execution of which are admitted by the adverse party." With the consequent admission engendered by petitioners’ failure to properly deny the Acknowledgment in their Answer, coupled with its proper authentication, identification and offer by the respondent, not to mention petitioners’ admissions in paragraphs 4 to 6 of their Answer that they are indeed indebted to respondent, the Court believes that judgment may be had solely on the document, and there is no need to present receipts and other documents to prove the claimed indebtedness. (Spouses Santos vs. Alcazar, G.R. No. 183034, March 12, 2014)

Rule 8, Section 8 specifically applies to actions or defenses founded upon a written instrument and provides the manner of denying it. It is more controlling than Rule 6, Section 10 which merely provides the effect of failure to file a Reply. Thus, where the defense in the Answer is based on an actionable document, a Reply specifically denying it under oath must be made; otherwise, the genuineness and due execution of the document will be deemed admitted. (Casent Realty Development Corp. vs. Philbanking Corporation, G.R. No. 150731, September 14, 2007 ) Section 8, Rule 8 of the Rules of Court is not applicable when the adverse party does not appear to be a party to the instrument. (Municipality of Tiwi vs. Betito, G.R. No. 171873, July 9, 2010)

There is no need for proof of execution and authenticity with respect to documents the genuineness and due execution of which are admitted by the adverse party. With the consequent admission engendered by petitioners’ failure to properly deny the Acknowledgment in their Answer, coupled with its proper authentication, identification and offer by the respondent, not to mention petitioners’ admissions in paragraphs 4 to 6 of their Answer that they are indeed indebted to respondent, the Court believes that judgment may be had solely on the document, and there is no need to present receipts and other documents to prove the claimed indebtedness. (Spouses Santos vs. Alcazar, G.R. No. 183034, March 12, 2014) Motions and other papers sent to the CA by private messengerial services are deemed filed on the date of the CA's actual receipt The petitioners received the assailed resolution of November 16, 2011 on November 24, 2011. Under Section l, Rule 52 of the Rules of Court, they had 15 days from receipt (or until December 9, 2011) within which to move for its reconsideration or to appeal to the Supreme Court. They dispatched the Motion for Reconsideration (on the Resolution dated 16 November 2011) on December 9, 2011 through private courier (LBC). The CA actually received the motion on December 12, 2011. Considering that Section 1 (d) of Rule III of the 2009 Internal Rules of the Court of Appeals provided that motions sent through private messengerial services are deemed filed on the date of the CA's actual receipt of the same, the motion was already filed out of time by December 12, 2011.

-9Needless to remind, the running of the period of appeal of the final resolution promulgated on November 16, 2011 was not stopped, rendering the assailed resolution final and executory by operation of law. (Pascual vs. First Consolidated Rural Bank (Bohol), Inc., G.R. No. 202597, February 8, 2017 SUMMONS For substituted service to be justified, the following circumstances must be clearly established: (1) impossibility of prompt personal service – the party relying on substituted service or the sheriff must show that the defendant cannot be served promptly or there is impossibility of prompt service; (2) specific details in the return – the sheriff must describe in the Return of Summons the facts and circumstances surrounding the attempted personal service; (3) a person of suitable age and discretion – the sheriff must determine if the person found in the alleged dwelling or residence of defendant is of legal age, what the recipient’s relationship with the defendant is, and whether said person comprehends the significance of the receipt of the summons and his duty to immediately deliver it to the defendant or at least notify the defendant of said receipt of summons, which matters must be clearly and specifically described in the Return of Summons; and (4) a competent person in charge, who must have sufficient knowledge to understand the obligation of the defendant in the summons….. "Several attempts" means at least three (3) tries, preferably on at least two different dates. In addition, the sheriff must cite why such efforts were unsuccessful. It is only then that impossibility of service can be confirmed or accepted.(Manotoc vs. Court of Appeals, G.R. No. 130974, August 16, 2006) Presumption of regularity in the performance of official functions by the sheriff not applicable when sheriff’s return is defective In the case of Venturanza v. Court of Appeals,it was held that "x x x the presumption of regularity in the performance of official functions by the sheriff is not applicable in this case where it is patent that the sheriff’s return is defective." While the Sheriff’s Return in the Venturanza case had no statement on the effort or attempt to personally serve the summons, the Return of Sheriff Cañelas in the case at bar merely described the efforts or attempts in general terms lacking in details as required by the ruling in the case of Domagas v. Jensen and other cases. It is as if Cañelas’ Return did not mention any effort to accomplish personal service. Thus, the substituted service is void (De Pedro vs. Romasan Development Corporation, G.R. No. 194751, November 26, 2014) Effect of failure to follow Manotoc – lack of jurisdiction over person of defendant Annulment of judgment is an equitable principle not because it allows a party-litigant another opportunity to reopen a judgment that has long lapsed into finality but because it enables him to be discharged from the burden of being bound to a judgment that is an absolute nullity to begin with. In the present case, petitioner contends that there was lack of jurisdiction over her person because there was an invalid substituted service of summons. Given that the meticulous requirements in Manotoc were not met, the Court is not inclined to uphold the CA's denial of the petition for annulment of judgment for lack of jurisdiction over the person of petitioner because there was an invalid substituted service of summons. Accordingly, the decision in Civil Case No. 02-0306 declaring respondent’s marriage with petitioner as null and void ab initio and must be declared null and void. The stricter rule in substituted service of summons was meant to address "[t]he numerous claims of irregularities in substituted service which have spawned the filing of a great number of unnecessary special civil actions of certiorari and appeals to higher courts, resulting in prolonged litigation and wasteful legal expenses." (Ong vs. Co, G.R. No. 206653,February 25, 2015) No valid service by publication Personal service of summons is the preferred mode. And, the rules on the service of summons other than by personal service may be used only as prescribed and only in the circumstances authorized by statute. Thus, the impossibility of prompt personal service must be shown by stating that efforts have been made to find the defendant personally and that such efforts have failed before substituted service may be availed. Furthermore, their rules

- 10 must be followed strictly, faithfully and fully as they are extraordinary in character and considered in derogation of the usual method of service. Here, the summons was served on the petitioner by publication. Yet, the circumstances surrounding the case do not justify the resort. Consider: in July 2003, the sheriff attempted to serve the summons on the defendants, including petitioner Carmelita, at Fumakilla Compound, i.e., at the property already foreclosed, acquired, and possessed by the respondent bank as early as August 2001. Immediately after this single attempt at personal service in July 2003, the respondent bank moved in October 2003 for leave to serve the summons by publication (and not even substituted service), which motion the RTC granted. Clearly, there was no diligent effort made to find the petitioner and properly serve her the summons before the service by publication was allowed. Neither was it impossible to locate the residence of petitioner and her whereabouts. (Borlongan vs. Banco de Oro, G.R. No. 217617, April 6. 2017)

When substituted service of summons valid despite failure to strictly follow Manotoc While Our pronouncement in Manotoc has been strictly applied to several succeeding cases, We do not cling to such strictness in instances where the circumstances justify substantial compliance with the requirements laid down therein. It is the spirit of the procedural rules, not their letter, that governs. In Sagana v. Francisco, the substituted service of summons was questioned for noncompliance with the Rules, since the summons was not allegedly served at defendant's residence or left with any person who was authorized to receive it on behalf of the defendant. We upheld the validity of the substituted service of summons due to the defendant's evident avoidance to receive the summons personally despite the process server's diligent efforts to effect personal service upon him. A perusal of the Officer's Return dated October 28, 2008 detailing the circumstances surrounding the service of the second alias Summons dated September 9, 2008 shows that the foregoing requirements for a valid substituted service of summons were substantially complied with. Indeed, the Return established the impossibility of personal service to Carson's officers, as shown by the efforts made by Process Server Pajila to serve the September 8, 2008 alias Summons on Carson's President/General Manager. In particular, several attempts to serve the summons on these officers were made on four separate occasions: October 2, 2008, October 16, 2008, October 27, 2008, and October 28, 2008, but to no avail. On his fourth and final attempt, Process Server Pajila served the summons on Fernandez, Carson's receptionist, due to the unavailability and difficulty to locate the company's corporate officers. Based on the facts, there was a deliberate plan of Carson's for its officers not to receive the Summons. It is a legal maneuver that is in derogation of the rules on Summons. We cannot tolerate that. The facts now show that the responsible officers did not intend to receive the alias Summons through substituted service. The Summons is considered validly served. The RTC acquired jurisdiction over Carson because of voluntary appearance In any event, even if We concede the invalidity of the substituted service, Carson voluntarily submitted to the jurisdiction of the RTC when it filed, through Atty. Roxas, the Appearance and Motion dated April 25, 2007 acknowledging Carson's receipt of the Summons dated April 11, 2007 and seeking additional time to file its responsive pleading. As noted by the CA, Carson failed to indicate therein that the Appearance and Motion was being filed by way of a conditional appearance to question the regularity of the service of summons. Thus, by securing the affirmative relief of additional time to file its responsive pleading, Carson effectively voluntarily submitted to the jurisdiction of the RTC. (Carson Realty & Management Corporation vs. Red Robin Security Agency, G.R. No. 225035, February 8, 2017)

Overly strict application of the rules frowned upon

- 11 However, we frown upon an overly strict application of the Rules. It is the spirit, rather than the letter of the procedural rules, that governs. In his Return, Sheriff Potente declared that he was refused entry by the security guard in Alabang Hills twice. The latter informed him that petitioner prohibits him from allowing anybody to proceed to her residence whenever she is out. It was impossible for the sheriff to effect personal or substituted service of summons upon petitioner. Considering her strict instruction to the security guard, she must bear its consequences. Thus, summons has been properly served upon petitioner and it has acquired jurisdiction over her. (Robinson vs. Miralles, G.R. No. 163584, December 12, 2006) In case of substituted service, there should be a report indicating that the person who received the summons in the defendant’s behalf was one with whom the defendant had a relation of confidence ensuring that the latter would actually receive the summons. Here, petitioner failed to show that the security guard who received the summons in respondent’s behalf shared such relation of confidence that respondent would surely receive the summons. Hence, we are unable to accept petitioner’s contention that service on the security guard constituted substantial compliance with the requirements of substituted service. (Orion Security Corporation vs. Kalfam Enterprises, Inc., G.R. No. 163287, April 27, 2007) General rule: filing pleadings seeking affirmative relief constitutes voluntary appearance and the consequent submission of one’s person to the jurisdiction of the court. When Chandumal filed an Urgent Motion to Set Aside Order of Default and to Admit Attached Answer, she effectively submitted her person to the jurisdiction of the trial court as the filing of a pleading where one seeks an affirmative relief is equivalent to service of summons and vests the trial court with jurisdiction over the defendant’s person. Thus, it was ruled that the filing of motions to admit answer, for additional time to file answer, for reconsideration of a default judgment, and to lift order of default with motion for reconsideration is considered voluntary submission to the trial court’s jurisdiction. The Court notes that aside from the allegation that she did not receive any summons, Chandumal’s motion to set aside order of default and to admit attached answer failed to positively assert the trial court’s lack of jurisdiction. In fact, what was set forth therein was the substantial claim that PDB failed to comply with the requirements of R.A. No. 6552 on payment of cash surrender value, which already delves into the merits of PDB’s cause of action. In addition, Chandumal even appealed the RTC decision to the CA, an act which demonstrates her recognition of the trial court’s jurisdiction to render said judgment. (Planters Development Bank vs. Chandumal, G.R. No. 195619, September 5, 2012) Voluntary appearance – waiver of defective service of summons It must be stressed that, before resorting to substituted service, a sheriff is enjoined to try his best efforts to accomplish personal service on the defendant. And since the defendant is expected to try to avoid and evade service of summons, the sheriff must be resourceful, persevering, canny, and diligent in serving the process on the defendant. However, the RTC acquired jurisdiction over Wong by virtue of his voluntary appearance before it in Civil Case No. C-21860. The RTC allowed Wong to cross-examine Koyama. Wong, through his counsel, aggressively questioned her during the January 23, 2009 hearing, despite his knowledge that the RTC had not yet lifted the September 25, 2007 Order declaring him in default. By actively participating in the said hearing, he effectively acknowledged full control of the RTC over Civil Case No. C-21860 and over his person as the defendant therein. Thus, he is deemed to have voluntarily submitted himself to the jurisdiction of the trial court. (Wong vs. Factor-Koyama, G.R. No. 183802, September 17, 2009) Defendant’s filing of a motion for resetting of the hearing effectively cured the defect of the substituted service of summons. Although the substituted service of summons on defendant is patently defective as the sheriff’s return does not contain any statement with regard to the impossibility of personal service, said defect was cured by his voluntary appearance. After plaintiff moved for the execution of the trial court’s decision, defendant filed a motion for a re-setting of the court’s hearing thereon. An appearance in whatever form without expressly objecting to the jurisdiction of the court over the person, is a submission to the jurisdiction of the court over the person of the defendant or respondent. (Cezar vs. Ricafort-Bautista, G.R. No. 136415,. October 31, 2006)

- 12 Special appearance to question a court's jurisdiction is not voluntary appearance A party who makes a special appearance to challenge, among others, the court's jurisdiction over his person cannot be considered to have submitted to its authority. In all her pleadings and motions, the petitioner never faltered in declaring that the trial court did not acquire jurisdiction over her person, due to invalid and improper service of summons. It is noteworthy that when the petitioner filed those pleadings and motions, it was only in a "special" character, conveying the fact that her appearance before the trial court was with a qualification, i.e., to defy the RTC's lack of jurisdiction over her person. (Frias vs.Alcayde, G.R. No. 194262, February 28, 2018)

Service of summons on resident defendant in an action in personam: If he is temporarily out of the country, any of the following modes of s.service may be resorted to: (1) substituted service set forth in Section 8 of Rule 14; (2) personal service outside the country, with leave of court; (3) service by publication, also with leave of court; or (4) any other manner the court may deem sufficient.(Belen vs. Chavez, G.R. No. 175334, March 26, 2008) Section 16 of Rule 14 regarding service of summons on residents temporarily out of the Philippines uses the words “may” and “also.” Thus, extraterritorial service is not mandatory. Other methods of service of summons allowed under the Rules may also be availed of by the serving officer on a defendant-seaman. The normal method of service of summons on one temporarily absent is by substituted service because personal service abroad and service by publication are not ordinary means of summoning defendants. (Montefalcon vs. Vasquez, G.R. No.165016, June 17, 2008) Substituted service on resident defendant temporarily out of the country. The Sheriff's Return stated that private respondent was out of the country; Thus, the service of summons was made at her residence with her husband, Alfredo P. Agudo, acknowledging receipt thereof. Alfredo was presumably of suitable age and discretion, who was residing in that place and,therefore, was competent to receive the summons on private respondent's behalf. The RTC had indeed acquired jurisdiction over the person of private respondent when the latter's counsel entered his appearance on private respondent's behalf, without qualification and without questioning the propriety of the service of summons, and even filed two Motions for Extension of Time to File Answer. (Palma vs. Galvez , G.R. No. 165273, March 10, 2010) Under Section 15, Rule 14, there are only four instances wherein a defendant who is a non-resident and is not found in the Philippines may be served with summons by extraterritorial service: (1) when the action affects the personal status of the plaintiff; (2) when the action relates to, or the subject of which ia property, within the Philippines, in which the defendant claims a lien or an interest, actual or contingent; (3) when the relief demanded in such action consists, wholly or in part, in excluding the defendant from any interest in property located within the Philippines; and (4) when the defendant non-resident’s property has been attached within the Philippines. In these instances, service of summons may be effected by (a) personal service out of the country, with leave of court; (b) publication, also with leave of court; or (c) any other manner the court may deem sufficient. Extraterritorial service of summons applies only when the action is in rem or quasi in rem and not when the action is in personam. The case for collection of sum of money and damages filed by the respondent against the petitioner being an action in personam, then personal service of summons upon the petitioner within the Philippines is essential for the RTC to validly acquire jurisdiction over the person of the petitioner. Having failed to do so, the RTC can never subject petitioner to its jurisdiction. The mere allegation made by the respondent that the petitioner had shares of stock within the Philippines was not enough to convert the action from one in personam to one that was quasi in rem, for petitioner’s purported personal property was never attached (Perkin Elmer Singapore Pte Ltd. vs. Dakila Trading Corporation, G.R. No. 172242, August 14, 2007). Extraterritorial service of summons in in rem and quasi in rem cases As a rule, Philippine courts cannot try any case against a defendant who does not reside and is not found in the Philippines because of the impossibility of acquiring jurisdiction over his person unless he voluntarily appears in court; but when the case is an action in rem or quasi in rem enumerated in Section 15, Rule 14 of the Rules of Court, Philippine courts have jurisdiction to hear and decide the case because they have jurisdiction over the res, and jurisdiction over

- 13 the person of the non-resident defendant is not essential. In the latter instance, extraterritorial service of summons can be made upon the defendant, and such extraterritorial service of summons is not for the purpose of vesting the court with jurisdiction, but for the purpose of complying with the requirements of fair play or due process, so that the defendant will be informed of the pendency of the action against him and the possibility that property in the Philippines belonging to him or in which he has an interest may be subjected to a judgment in favor of the plaintiff, and he can thereby take steps to protect his interest if he is so minded. On the other hand, when the defendant in an action in personam does not reside and is not found in the Philippines, our courts cannot try the case against him because of the impossibility of acquiring jurisdiction over his person unless he voluntarily appears in court. (Macasaet vs. Co, G.R. No. 156759, June 5, 2013)

MOTION TO DISMISS It was only during the pre-trial stage that respondents verbally manifested and invited the attention of the lower court on their grounds for dismissal. In order to justify such late invocation, they heavily relied on Section 2(g) and (i), Rule 18 of the Rules of Court that the nature and purpose of the pre-trial include, among others, the propriety of dismissing the action should there be a valid ground therefor and matters which may aid in the prompt disposition of the action. The respondents are not correct. The rules are clear and require no interpretation. Pursuant to Section 1, Rule 9 of the Rules of Court, a motion to dismiss based on the grounds invoked by the respondents may be waived if not raised in a motion to dismiss or alleged in their answer. On the other hand, ―the pre-trial is primarily intended to make certain that all issues necessary to the disposition of a case are properly raised. The purpose is to obviate the element of surprise, hence, the parties are expected to disclose at the pre-trial conference all issues of law and fact which they intend to raise at the trial, except such as may involve privileged or impeaching matter.‖ The issues submitted during the pre-trial are thus the issues that would govern the trial proper. The dismissal of the case based on the grounds invoked by the respondents are specifically covered by Rule 16 and Rule 9 of the Rules of Court which set a period when they should be raised; otherwise, they are deemed waived. (Contreras vs. Rovilla Water Supply, Inc., G.R. No. 168979, December 2, 2013)

As a consequence of the motion to dismiss that defendant Narciso filed, the running of the period during which the rules required her to file her answer was deemed suspended. When the trial court denied her motion to dismiss, therefore, she had the balance of her period for filing an answer under Section 4, Rule 16 within which to file the same but in no case less than five days, computed from her receipt of the notice of denial of her motion to dismiss. But apart from opposing defendant’s motion to dismiss, plaintiff Garcia asked the trial court to declare Narciso in default for not filing an answer, altogether disregarding the suspension of the running of the period for filing such an answer during the pendency of the motion to dismiss that she filed in the case. Consequently, when the trial court granted Garcia’s prayer and simultaneously denied Narciso’s motion to dismiss and declared her in default, it committed serious error. Narciso was not yet in default when the trial court denied her motion to dismiss. She still had at least five days within which to file her answer to the complaint. What is more, Narciso had the right to file a motion for reconsideration of the trial court’s order denying her motion to dismiss. No rule prohibits the filing of such a motion for reconsideration. Only after the trial court shall have denied it does Narciso become bound to file her answer to Garcia’s complaint. And only if she did not do so was Garcia entitled to have her declared in default. (Narciso vs. Garcia, G.R. No. 196877, November 21, 2012) 1âwphi 1

Remedy from denial of motion to dismiss – appeal from decision

The Court of Appeals erred in granting the writ of certiorari in favor of respondent. Well-settled is the rule that the special civil action for certiorari is not the proper remedy to assail the denial by the trial court of a motion to dismiss. The order of the trial court denying a motion to dismiss is merely interlocutory, as it neither terminates nor finally disposes of a case and still leaves something to be done by the court before a case is finally decided on the merits. Therefore, "the proper remedy in such a case is to appeal after a decision has been rendered. (Boston Equity Resources, Inc. vs. Court of Appeals, G.R. No. 173946, June 19, 2013) When certiorari proper remedy against order denying motion to dismiss

- 14 While an order denying a motion to dismiss is interlocutory and non-appealable, certiorari and prohibition are proper remedies to address an order of denial made without or in excess of jurisdiction. The writ of certiorari is granted to keep an inferior court within the bounds of its jurisdiction or to prevent it from committing grave abuse of discretion amounting to lack or excess of jurisdiction. (Contreras vs. Rovila Water Supply, G.R. No. 168979, December 2, 2013) The court cannot validly dismiss the case on the affirmative defense of prescription without a hearing thereon. The affirmative defense of prescription does not automatically warrant the dismissal of a complaint under Rule 16 of the Rules of Civil Procedure. An allegation of prescription can effectively be used in a motion to dismiss only when the complaint on its face shows that indeed the action has already prescribed. If the issue of prescription is one involving evidentiary matters requiring a full-blown trial on the merits, it cannot be determined in a motion to dismiss. Those issues must be resolved at the trial of the case on the merits wherein both parties will be given ample opportunity to prove their respective claims and defenses. (Sanchez vs. Sanchez, G.R. No. 187661, December 4, 2013) Waiver of the grounds for motion to dismiss Rule 16 of the Rules of Court provides for the period within which to file a motion to dismiss under the grounds enumerated. Specifically, the motion should be filed within the time for, but before the filing of, the answer to the complaint or pleading asserting a claim. Section 1, Rule 9 of the Rules of Court states that defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived, except for the following grounds: 1) the court has no jurisdiction over the subject matter; 2) litis pendencia; 3) res judicata; and 4) prescription. Therefore, the grounds not falling under these four exceptions may be considered as waived in the event that they are not timely invoked, in this case, failure to state a cause of action and failure to comply with a condition precedent (substitution of parties), The motion to dismiss was only filed after the filing of the answer and after the pre-trial had been concluded. Because there was no motion to dismiss before the filing of the answer, the respondents should then have at least raised these grounds as affirmative defenses in their answer. (Contreras vs. Rovila Water Supply, G.R. No. 168979, December 2, 2013) The court can moto proprio dismiss a claim only on the four grounds for dismissal which under Rule 9, Section 1, are not deemed waived even if not raised The base issue is whether or not the appellate court may dismiss the complaint for failure to allege therein that earnest efforts towards a compromise have been made. The appellate court committed egregious error in dismissing the complaint. The second sentence of Section 1 of Rule 9 does not only supply exceptions to the rule that defenses not pleaded either in a motion to dismiss or in the answer are deemed waived, it also allows courts to dismiss cases motu propio on any of the enumerated grounds Thus, a court may motu proprio dismiss a claim when it appears from the pleadings or evidence on record that it has no jurisdiction over the subject matter; when there is another cause of action pending between the same parties for the same cause, or where the action is barred by a prior judgment or by statute of limitations. Failure to allege in the complaint that earnest efforts at a compromise has been made but had failed (which is a condition for filing of the complaint) is not one of the exceptions. Upon such failure, the defense is deemed waived. (Heirs of Favis, Sr. vs Gonzales, G.R. No. 185922 January 15, 2014) Preliminary hearing on affirmative defenses not necessary when affirmative defense is failure to state a cause of action The trial court may elect to hold a preliminary hearing on affirmative defenses as raised in the answer under Section 6 of Rules 16 of the Rules of Court. Such a hearing is not necessary when the affirmative defense is failure to state a cause of action, and that it is, in fact, error for the court to hold a preliminary hearing to determine the existence of external facts outside the complaint. The reception and the consideration of evidence on the ground that the complaint fails to state a cause of action, has been held to be improper and impermissible. Thus, in a preliminary hearing on a motion to dismiss or on the affirmative defenses raised in an answer,

- 15 the parties are allowed to present evidence except when the motion is based on the ground of insufficiency of the statement of the cause of action which must be determined on the basis only of the facts alleged in the complaint and no other. (Aquino vs. Quiazon, G.R. No. 201248, March 11, 2015)

Unlike a "final" judgment or order, which is appealable, an "interlocutory" order may not be questioned on appeal except only as part of an appeal that may eventually be taken from the final judgment rendered in the case.The RTC Order dated June 13, 2007 denying the motion to set hearing on special and affirmative defenses is no doubt interlocutory for it did not finally dispose of the case but will proceed with the pre-trial. As such, the said Order is not appealable, but may be questioned as part of an appeal that may eventually be taken from the final judgment rendered. Here, respondents had consistently raised in their Answer and in the appeal before the CA the issue of Cafiiza's authority to file the case on behalf of Gabriel. (Heirs of Josefina Gabriel vs. Cebrero, G.R.No. 222737, November 12, 2018) Dismissal of action – failure to state a cause of action and lack of cause of action Failure to state a cause of action refers to the insufficiency of the pleading, and is a ground for dismissal under Rule 16 of the Rules of Court. Lack of cause of action refers to a situation where the evidence does not prove the cause of action alleged in the pleading. The courts are not precluded from dismissing a case for lack of cause of action (i.e. insufficiency of evidence). In civil cases, courts must determine if the plaintiff was able to prove his case by a preponderance of evidence which is defined as the probability of the truth. It is evidence that is more convincing to the court as worthy of belief than that which is offered in opposition thereto. The dismissal of the complaint with prejudice is likewise not an exercise of wanton or palpable discretion. It must be noted that this case is an action for small claims where decisions are rendered final and unappealable, hence, a [d]ecision dismissing the same is necessarily with prejudice. (Lourdes Suites vs. Binarao G.R. No. 2014729, August 6, 2014) Distinction between motion to dismiss for failure to state a cause of action and motion to dismiss based on lack of cause of action. The first is raised in a motion to dismiss under Rule 16, Sec. 1 (g) before a responsive pleading is filed and can be determined only from the allegations of the pleading and not from evidentiary matters. The second is raised in a demurrer to evidence under Rule 33 after the plaintiff has rested his case and can be resolved only on the basis of the evidence he has presented in support of his claim(The Manila Banking Corp. vs. University of Baguio, Inc., G.R. No. 159189, February 21, 2007)

Compulsory counterclaim may prosper after dismissal of complaint for lack of jurisdiction Under the 1997 Rules of Civil Procedure, the dismissal of the complaint due to failure of the plaintiff to prosecute his case is without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate action. But what about when the complaint is dismissed for lack of jurisdiction? The same rule applies. The jurisdiction over a complaint is not to be confused with jurisdiction over the counterclaim. They are different. The counterclaim can be treated as a separate action, where the counterclaimant is the plaintiff while the plaintiff in the original complaint becomes the defendant. A counterclaim bears the same integral characteristics of a complaint. It has its own cause of action. If the dismissal of the complaint somehow eliminates the cause of the counterclaim, then the counterclaim cannot survive. But if the compulsory counterclaim is by reason of an unfounded suit then it may prosper even with the main complaint having been dismissed. The counterclaimant may indeed already have incurred damages and litigation expenses by virtue of improper service of summons. Thus, the cause of action of the counterclaimant is not eliminated by the mere dismissal of the main complaint. The RTC Pasig should have allowed Padilla’s counterclaim to proceed notwithstanding dismissal of the Realty Corps’ complaint. Padilla had already incurred expenses in defending

- 16 herself, having been sued in her personal capacity by the Realty Corps in a separate court (Pasig RTC), while the dispute between the Realty Corps and PNB was still being litigated (Pasay RTC). (Padilla vs. Globe Asiatique, G.R. No. 207376, August 6, 2014)

When should compulsory counterclaim be filed? At the time for filing of answer. A claim for recovery of the excess in the bid price vis- -vis the amount due should be interposed as a compulsory counterclaim in an action for recovery of a deficiency filed by the mortgagee against the debtor-mortgagor. It is elementary that a defending party’s compulsory counterclaim should be interposed at the time he files his Answer, and his failure to do so shall effectively bar such claim. Respondent’s belated assertion proved fatal to their cause as it did not cure their failure to timely raise such claim in their Answer. Thus, their claim for the excess is barred. (MBTC vs. CPR Promotions and Marketing, G.R. No. 200567, June 22, 2015).

When counterclaim for partition not barred by prior judgment. Based on Rule 17, Sec. 3 of the Rules of Court, the following are instances when a complaint may be dismissed due to the plaintiff's fault: (1) if he fails to appear on the date for the presentation of his evidence in chief on the complaint; (2) if he fails to prosecute his action for an unreasonable length of time; or (3) if he fails to comply with the Rules or any order of the court. The general rule is that dismissal of a case for failure to prosecute is to be regarded as an adjudication on the merits and with prejudice to the filing of another action, and the only exception is when the order of dismissal expressly contains a qualification that the dismissal is without prejudice. In this case, petitioners claim that the Order does not in any language say that the dismissal is without prejudice and, thus, the requirement that the dismissal be on the merits is present. Dismissal with prejudice amply satisfies one of the elements of res judicata. However, dismissal with prejudice under Rule 17, Sec. 3 of the Rules of Court cannot defeat the right of a co-owner to ask for partition at any time, provided that there is no actual adjudication of ownership of shares yet (Article 494, Civil Code). Between dismissal with prejudice under Rule 17, Sec. 3 and the right granted to co-owners under Art. 494 of the Civil Code, the latter must prevail. To construe otherwise would diminish the substantive right of a co-owner through the promulgation of procedural rules. Art. 494, as cited, is an exception to Rule 17, Sec. 3 of the Rules of Court to the effect that even if the order of dismissal for failure to prosecute is silent on whether or not it is with prejudice, it shall be deemed to be without prejudice. But, there can still be res judicata in partition cases concerning the same parties and the same subject matter once the respective shares of the co-owners have been determined with finality by a competent court with jurisdiction or if the court determines that partition is improper for co-ownership does not or no longer exists. Since, in this case, the co-ownership is still subsisting 30-70 in favor of respondent spouses Candelario, then there is no legal bar preventing respondents from praying for the partition of the property through counterclaim. (Quintos vs. Nicolas, G.R. No. 210252, June 16, 2014) MOTION TO DISMISS COMPLAINT FILED BY PLAINTIFF Under Section 2, Rule 17, where the plaintiff moves for the dismissal of his complaint to which a counterclaim has been interposed, the dismissal shall be limited to the complaint. Such dismissal shall be without prejudice to the right of the defendant to either prosecute his counterclaim in a separate action or to have the same resolved in the same action. Should he opt for the first alternative, the court should render the corresponding order granting and reserving his right to prosecute his claim in a separate complaint. Should he choose to have his counterclaim disposed of in the same action wherein the complaint had been dismissed, he must manifest such preference to the trial court within 15 days from notice to him of plaintiff’s motion to dismiss.These alternative remedies of the defendant are available to him regardless of whether his counterclaim is compulsory or permissive. A similar alternative procedure, with the same underlying reason therefor, is adopted in Sec. 6, Rule 16 and Sec. 3 of Rule 3, wherein the complaint is dismissed on the motion of the defendant or, in the latter instance, also by the court motu proprio. (Pinga vs. Santiago, G.R. No. 170354, June 30, 2006)

- 17 MOTION TO DISMISS COMPLAINT DUE TO PLAINTIFF’S FAULT Sec. 3, Rule 17 enumerates the instances where the complaint may be dismissed due to plaintiff’s fault: (1) if he fails to appear on the date for the presentation of his evidence in chief; (2) if he fails to prosecute his action for an unreasonable length of time; or (3) if he fails to comply with the rules or any order of the court. Once a case is dismissed for failure to prosecute, this has the effect of an adjudication on the merits and is understood to be with prejudice to the filing of another action unless otherwise provided in the order of dismissal. In other words, unless there be a qualification in the order of dismissal that it is without prejudice, the dismissal should be regarded as an adjudication on the merits and is with prejudice. (Cruz vs. Court of Appeals, G.R. No. 164797, February 13, 2006) Under Section 3, Rule 17, the dismissal of the complaint due to the fault of plaintiff does not necessarily carry with it the dismissal of the counterclaim, compulsory or otherwise. In fact, the dismissal of the complaint is without prejudice to the right of defendants to prosecute the counterclaim. (Pinga vs. Santiago, G.R. No. 170354, June 30, 2006). Pinga vs. Santiago which refers to instances covered by Section 3, Rule 17 on dismissal of the complaint due to the fault of the plaintiff also applies where the dismissal of the complaint was upon the instance of the petitioner who correctly argued lack of jurisdiction over its person. Petitioner’s counterclaim against respondent is for damages and attorney’s fees arising from the unfounded suit. While respondent’s complaint against petitioner is already dismissed, petitioner may have very well already incurred damages and litigation expenses such as attorney’s fees since it was forced to engage legal representation in the Philippines to protect its rights and to assert lack of jurisdiction of the courts over its person by virtue of the improper service of summons upon it. Hence, the cause of action of petitioner’s counterclaim is not eliminated by the mere dismissal of respondent’s complaint. (Perkin Elmer Singapore Pte Ltd. vs. Dakila Trading Corporation, G.R. No. 172242, August 14, 2007) In situations contemplated in Section 3, Rule 17, where a complaint is dismissed for failure of the plaintiff to comply with a lawful order of the court, such dismissal has the effect of an adjudication upon the merits. A dismissal for failure to prosecute has the effect of an adjudication on the merits, and operates as res judicata, particularly when the court did not direct that the dismissal was without prejudice. (Court of Appeals vs. Alvarez, G.R. No. 142439, December 3, 2006) Remedy from order of dismissal for failure to prosecute – ordinary appeal. An order of dismissal for failure to prosecute has the effect of an adjudication on the merits. Petitioners’ counsel should have filed a notice of appeal with the appellate court within the reglementary period. Instead of filing a petition under Rule 45 of the Rules of Court, the proper recourse was an ordinary appeal with the Court of Appeals under Rule 41. (Ko vs. PNB, 479 SCRA 298, January 20, 2006) PLEADINGS The statement in the verification "that the allegations are true and correct of the affiant's personal knowledge" constitutes sufficient compliance with the rule. A pleading may be verified in any of the following ways, (i) based on one's own personal knowledge; (ii) or based on authentic records; (iii) or both, as the circumstances may warrant. This rule was underscored in Hun Hyung Park v. Eung Won Choi, where the Court affirmed the validity of a verification, which merely stated that the contents of the petition for review are true and correct to the best of the petitioner's personal knowledge. The Court excused the petitioner's failure to attest that the contents of the petition are also based on authentic records Needless to say, a verification is a formal requirement, and is not jurisdictional. It is mainly intended to secure an assurance that matters alleged are done in good faith or are true and correct, and not of mere speculation. Resultantly, Victoriano's failure to indicate that the allegations are true and correct based on authentic records, may be excused, inasmuch as he already attested to the truth and correctness of the allegations based on his personal knowledge. .(Victoriano vs. Dominguez, G.R. No. 214794, July 23, 2018)

- 18 -

Non-forum shopping certification signed by counsel and not by the principal party is a defective certification This is because it is the principal party who has actual knowledge whether he has initiated similar action/s in other courts, agencies or tribunals (Go vs. Rico, G.R. No. 140682, April 25, 2006) Not fatal defect when only one petitioner signed the certification of non-forum shopping Such fact is not fatal to the petition because it satisifies the requirement that the petition be signed by a principal party (Bases Conversion Development Authority vs. Uy, G.R. No. 144062, November 2, 2006) What are the requirements of forum shopping certificate for a corporation? The lack of certification against forum shopping is generally not curable by the submission thereof after the filing of the petition. Section 5 of Rule 45 provides that the failure of the petitioner to submit the required documents that should accompany the petition, including the certification against forum shopping, shall be sufficient ground for the dismissal thereof. The same rule applies to certifications against forum shopping signed by a person on behalf of a corporation which are unaccompanied by proof that said signatory is authorized to file a petition on behalf of the corporation. In certain exceptional circumstances, however, the Court has allowed the belated filing of the certification.(Mediserv, inc. vs. Court of Appeals (special former 13th division) and Landheights Development Corporation, G.R. No. 161368, April 5, 2010) No proof of authority necessary The following officials or employees of the company can sign the verification and certification without need of a board resolution: (1) the Chairperson of the Board of Directors, (2) the President of a corporation, (3) the General Manager or Acting General Manager, (4) Personnel Officer, and (5) an Employment Specialist in a labor case. In Corazon’s affidavit, she stated that she is the "office manager and resident interpreter of the Manila Bureau of Fuji Television Network, Inc." and that she has "held the position for the last twenty-three years." As the office manager for 23 years, Corazon can be considered as having knowledge of all matters in Fuji’s Manila Bureau Office and is in a position to verify "the truthfulness and the correctness of the allegations in the Petition." ’Thus, Fuji substantially complied with the requirements of verification and certification against forum shopping. (Fuji Television Network, Inc. vs. Espiritu, G.R. No. 204944-45, December 3, 2014) Intervention - when allowed even after decision has been rendered Although Rule 19 of the Rules of Court is explicit on the period when a motion to intervene may be filed. This rule, however, is not inflexible. Interventions have been allowed even beyond the period prescribed in the Rule, when demanded by the higher interest of justice. Interventions have also been granted to afford indispensable parties, who have not been impleaded, the right to be heard even after a decision has been rendered by the trial court, when the petition for review of the judgment has already been submitted for decision before the Supreme Court, and even where the assailed order has already become final and executory. (Rodriguez vs. Court of Appeals, G.R. No. 184589, June 13, 2013)

DEFAULT Effect of declaration of default. The mere fact that a defendant is declared in default does not automatically result in the grant of the prayers of the plaintiff. To win, the latter must still present the same quantum of evidence that would be required if the defendant were still present. A party that defaults is not deprived of its rights, except the right to be heard and to present evidence to the trial court. If the evidence presented does not support a judgment for the plaintiff, the complaint should be dismissed, even if the defendant may not have been heard or allowed to present any countervailing evidence (Gajudo vs. Traders Royal Bank, G.R. No. 151098, March 21, 2006).

- 19 A defendant party declared in default retains the right to appeal from the judgment by default on the ground that the plaintiff failed to prove the material allegations of the complaint, or that the decision is contrary to law, even without need of the prior filing of a motion to set aside the order of default (Martinez vs. Republic, G.R. No. 160895, October 30, 2006). Procedure trial court must take when a defendant fails to file an answer. Under Sec. 3 of Rule 9, the court "shall proceed to render judgment granting the claimant such relief as his pleading may warrant," subject to the court’s discretion on whether to require the presentation of evidence ex parte. The same provision also sets down guidelines on the nature and extent of the relief that may be granted. In particular, the court’s judgment "shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages." (Gajudo vs. Traders Royal Bank, G.R. No. 151098, March 21, 2006)

JUDGMENT ON THE PLEADINGS Rule 34, Section 1 of the Rules of Court, provides that a judgment on the pleadings is proper when an answer fails to tender an issue or otherwise admits the material allegations of the adverse party's pleading. The essential question is whether there are issues generated by the pleadings. A judgment on the pleadings may be sought only by a claimant, who is the party seeking to recover upon a claim, counterclaim or cross-claim; or to obtain a declaratory relief. (Meneses vs. Secretary of Agrarian Reform, G.R. No. 156304, October 23, 2006) Judgment on the pleadings is improper when the answer to the complaint tenders several issues. A motion for judgment on the pleadings admits the truth of all the material and relevant allegations of the opposing party and the judgment must rest on those allegations taken together with such other allegations as are admitted in the pleadings. It is proper when an answer fails to tender an issue, or otherwise admits the material allegations of the adverse party's pleading. However, when it appears that not all the material allegations of the complaint were admitted in the answer for some of them were either denied or disputed, and the defendant has set up certain special defenses which, if proven, would have the effect of nullifying plaintiff's main cause of action, judgment on the pleadings cannot be rendered.(Municipality of Tiwi vs. Betito, G.R. No. 171873, July 9, 2010) SUMMARY JUDGMENT For summary judgment to be proper, two (2) requisites must concur: (1) there must be no genuine issue on any material fact, except for the amount of damages; and (2) the moving party must be entitled to a judgment as a matter of law. When, on their face, the pleadings tender a genuine issue, summary judgment is not proper. An issue is genuine if it requires the PRESENTATION OF EVIDENCE as distinguished from a sham, fictitious, contrived or false claim. The trial court’s decision was merely denominated as summary judgment. But in essence, it is actually equivalent to a judgment on the merits, making the rule on summary judgment inapplicable in this case. (Ontimare vs. Elep, G.R. No. 159224, January 20, 2006). When the facts as pleaded appear uncontested or undisputed, then there is no real or genuine issue or question as to the facts, and summary judgment is called for. The party who moves for summary judgment has the burden of demonstrating clearly the absence of any genuine issue of fact, or that the issue posed in the complaint is patently unsubstantial so as not to constitute a genuine issue for trial. Trial courts have limited authority to render summary judgments and may do so only when there is clearly no genuine issue as to any material fact. When the facts as pleaded by the parties are disputed or contested, proceedings for summary judgment cannot take the place of trial (Asian Construction and Development Corp. vs. PCIB, G.R. No. 153827, April 25, 2006). Under the Rules, summary judgment is appropriate when there are no genuine issues of fact which call for the presentation of evidence in a full-blown trial. Even if on their face the pleadings appear to raise issues, when the affidavits, depositions and admissions show that such issues are not genuine, then summary judgment as prescribed by the Rules must ensue as a matter of

- 20 law. The determinative factor, therefore, in a motion for summary judgment, is the presence or absence of a genuine issue as to any material fact. (Philippine Bank Of Communications vs. Spouses Go , G.R. No. 175514, February 14, 2011)

Although motions for summary judgment can be filed before the pre-trial, their non-resolution prior to the pre-trial should not prevent the holding of the pre-trial It is erroneous on the part of the CA to declare that "it is only at the pre-trial that the rules allow the courts to render judgment on the pleadings and summary judgment, as provided by Section 2(g) of Rule 18 of the Rules of Court." The filing of the motion for summary judgment may be done prior to the pre-trial. Section 1, Rule 35 of the Rules of Court permits a party seeking to recover upon a claim, counterclaim, or cross-claim or seeking declaratory relief to file the motion for a summary judgment upon all or any part thereof in his favor (and its supporting affidavits, depositions or admissions) "at any time after the pleading in answer thereto has been served;" while Section 2 of Rule 35 instructs that a party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory relief is sought may file the motion for summary judgment (and its supporting affidavits, depositions or admissions) upon all or any part thereof "at any time." As such, the petitioners properly filed their motion for summary judgment prior to the pre-trial (assuming that they thereby complied with the requirement of supporting affidavits, depositions or admissions). To be clear, the rule only spells out that unless the motion for such judgment has earlier been filed the pre-trial may be the occasion in which the court considers the propriety of rendering judgment on the pleadings or summary judgment. If no such motion was earlier filed, the pre-trial judge may then indicate to the proper party to initiate the rendition of such judgment by filing the necessary motion. Indeed, such motion is required by either Rule 34 (Judgment on the Pleadings) or Rule 35 (Summary Judgment). The pre-trial judge cannot motu proprio render the judgment on the pleadings or summary judgment. In the case of the motion for summary judgment, the adverse party is entitled to counter the motion. (Sps. Pascual vs. First Consolidated Bank (Bohol), Inc.,G.R. No. 202597, February 8. 2017)

A partial summary judgment is a final judgment which is appealable A summary judgment is granted to settle expeditiously a case if, on motion of either party, there appears from the pleadings, depositions, admissions, and affidavits that no important issues of fact are involved, except the amount of damages. The RTC judgment in this case fully determined the rights and obligations of the parties relative to the case for quieting of title and left no other issue unresolved, except the amount of damages. Hence, it is a final judgment. In leaving out the determination of the amount of damages, the RTC did not remove its summary judgment from the category of final judgments. In fact, under Section 3, Rule 35 of the Rules of Court, a summary judgment may not be rendered on the amount of damages, although such judgment may be rendered on the issue of the right to damages It is therefore reasonable to distinguish the present case from GSIS v. Philippine Village Hotel, Inc. In that case, the summary judgment specifically stated that "[t]rial on the issu[e] of damages shall resume." Evidently, there remained an unresolved issue on the right to damages. Here, the trial court, in stating that "except as to the amount of damages, a summary judgment is hereby rendered in favor of the plaintiffs and against the defendants," had, in effect, resolved all issues, including the right to damages in favor of the plaintiffs (petitioners). What remained undetermined was only the amount of damages. (Ybiernas vs. Gabaldon, G.R. No. 178925, June 1, 2011) DEMURRER TO EVIDENCE Upon the dismissal of the demurrer in the appellate court, the defendant loses the right to present his evidence and the appellate court shall then proceed to render judgment on the merits on the basis of plaintiff’s evidence. The rule, however, imposes the condition that if his demurrer is granted by the trial court, and the order of dismissal is reversed on appeal, the

- 21 movant loses his right to present evidence in his behalf and he shall have been deemed to have elected to stand on the insufficiency of plaintiff’s case and evidence. In such event, the appellate court which reverses the order of dismissal shall proceed to render judgment on the merits on the basis of plaintiff’s evidence (Republic vs. Tuvera, G.R. No. 148246, February 16, 2007).

EXECUTION Remedies of third party claimant under Rule 39, Sec. 16 Section 16, Rule 39 of the Rules of Court provides for the remedies of third-party claimant of an alleged wrongfully levied property . Based on this section, a third-party claimant has the following cumulative remedies: (a) he may avail of "terceria" by serving on the levying officer making the levy an affidavit of his title, and serving also a copy to the judgment creditor; (b) he may file a case for damages against the bond issued by the judgment debtor within 120 days from the date of the filing of the bond; and ( c) he may file "any proper action" to vindicate his claim to the property. A "proper action" is entirely "distinct and separate from that in which the judgment is being enforced, with the court of competent jurisdiction." Such a "proper action" may have for its object the recovery of ownership or possession of the property seized by the sheriff, as well as damages from the allegedly wrongful seizure and detention of the property. This determination of ownership is not the proper subject of an action for annulment of judgment. In this case, the proper recourse for petitioners is to vindicate and prove their ownership over the properties in a separate action as allowed under Section 16, Rule 39 of the Rules of Court. This is the more prudent action since respondent also asserts that the properties claimed were owned by Mary, and the CA upheld such assertion. At this juncture, we note that if we grant the petition, we would be nullifying the whole proceeding in Civil Case No. 110-0-2003 which is more than what is necessary to address the remedy being sought by petitioners. (Encarnacion vs. Johnson, G.R. No. 192285, July 17, 2018)

Money judgments are enforceable only against the property incontrovertibly belonging to the judgment debtor, and if the property belonging to any third person is mistakenly levied upon to answer for another man’s indebtedness, such person has all the right to challenge the levy through any of the remedies provided for under the Rules of Court. Section 16, Rule 39 specifically provides that a third person may avail himself of the remedies of either terceria, to determine whether the sheriff has rightly or wrongly taken hold of the property not belonging to the judgment debtor or obligor, or an independent "separate action" to vindicate his claim of ownership and/or possession over the foreclosed property... Before the court can exercise its supervisory power to direct the release of the property mistakenly levied and the restoration thereof to its rightful owner, the claimant must first unmistakably establish his ownership or right of possession thereon. [A] third person whose property was seized by a sheriff to answer for the obligation of the judgment debtor may invoke the supervisory power of the court which authorized such execution. Upon due application by the third person and after summary hearing, the court may command that the property be released from the mistaken levy and restored to the rightful owner or possessor What said court can do in these instances, however, is limited to a determination of whether the sheriff has acted rightly or wrongly in the performance of his duties in the execution of judgment, more specifically, if he has indeed taken hold of property not belonging to the judgment debtor. The court does not and cannot pass upon the question of title to the property, with any character of finality. (Villasi vs. Garcia, G.R. No. 190106, January 15, 2014) The timing of the filing of the third party claim is important because the timing determines the remedies that a third party is allowed to file. A third party claimant under Section 16 of Rule 39 may vindicate his claim to the property in a separate action, because intervention is no longer allowed as judgment has already been rendered. A third party claimant under Section 14 of Rule 57, on the other hand, may vindicate his claim to the property by intervention because he has a legal interest in the matter in litigation. (Fort Bonifacio Development Corporation vs. Yllas Lending Corporation., G.R. No. 158997, October 6, 2008) Requisites to stay immediate execution of judgment in plaintiff’s favor in an ejectment suit under Sec. 19, Rule 70

- 22 A judgment in favor of the plaintiff in an ejectment suit is immediately executory, but the defendant, to stay its immediate execution, must: (1) perfect an appeal; (2) file a supersedeas bond; and (3) periodically deposit the rentals becoming due during the pendency of the appeal. Although the petitioner correctly states that the Spouses Lopez should file a motion for execution pending appeal before the court may issue an order for the immediate execution of the judgment, the Spouses Lopez are equally correct in pointing out that they were entitled to the immediate execution of the judgment in view of the Acbangs’ failure to comply with all of the three abovementioned requisites for staying the immediate execution. The filing of the notice of appeal alone perfected the appeal but did not suffice to stay the immediate execution without the filing of the sufficient supersedeas bond and the deposit of the accruing rentals. (Acbang vs. Luczon, Jr., G.R. No. 164246, January 15, 2014) Execution as a matter of right The subject decision in Civil Case No. 6798 had already become final and executory. In fact, an entry of judgment was already issued by the Supreme Court where the case was elevated.1Hence, as such, execution of the said decision should have been issued as a matter of right, in accordance with Section 1, Rule 39 of the Rules of Court. Instead of immediately ordering the execution of the final judgment, Judge Ongpauco allowed the case to drag on through several resettings of the hearings of the case on such grounds as (1) the defendant not being around; (2) the records of the case were not yet in the court’s possession; (3) the granting of the defendant’s motion and manifestation to submit his comment/opposition to plaintiff’s motion for execution; (4) the records of the case had been elevated anew to the Regional Trial Court. (San Buenaventura vs. Migrino, A.M. No. P-08-2574 (Formerly A.M. OCA IPI No. 082748-P) , January 22, 2014) Execution as a matter of right: no need to notify defeated party Under Paragraph 1, Section 1 of Rule 39, the Spouses Co can have their motion for execution executed as a matter of right without the needed notice and hearing requirement to petitioner (judgment debtor). This is in contrast to the provision of Paragraph 2 of Sections 1 and 2 where there must be notice to the adverse party. It is evident that Section 1 of Rule 39 of the Revised Rules of Court does not prescribe that a copy of the motion for the execution of a final and executory judgment be served on the defeated party, like litigated motions such as a motion to dismiss (Section 3, Rule 16), or motion for new trial (Section 2, Rule 37), or a motion for execution of judgment pending appeal (Section 2, Rule 39), in all of which instances a written notice thereof is required to be served by the movant on the adverse party in order to afford the latter an opportunity to resist the application. (Anama vs. Court of Appeals G.R. No. 187021, January 25, 2012)

Supervening event when not sufficient stay execution In ejectment cases, the judgment of the RTC against the defendant appellant is immediately executory, and is not stayed by an appeal taken therefrom, unless otherwise ordered by the RTC, or in the appellate court's discretion, suspended or modified, or supervening events occur which have brought about a material change in the situation of the parties and would make the execution inequitable. In this case, the court a quo, through its March 18, 2016 and July 28, 2016 Orders (assailed Orders), suspended the execution of its November 17, 2014 Consolidated Decision against respondents in the ejectment cases. Essentially, it ruled that the City of Manila's filing of the expropriation case to acquire the subject land constituted a supervening event that warranted the aforesaid suspension. There is no dispute that at the time the assailed Orders were issued the City of Manila had filed an expropriation case to acquire the subject land, and in fact, obtained a ruling in its favor. These occurrences notwithstanding, records fail to show that the City of Manila had either: (1) priorly posted the required judicial deposit in favor of petitioners in order to secure possession of the subject land, in accordance with Section 1937 of the Local Government Code of 1991; or (2) paid the original landowners, i.e., Carlos Tuason's living heirs (the petitioners herein), the adjudged final just compensation for the subject land so as to consider the expropriation process completed and consequently, effectuate the transfer of ownership to it. Thus, at the time the assailed Orders were issued, petitioners remained the owners of the subject

- 23 land, and therefore were entitled to all the rights appurtenant thereto. (Maravilla vs. Bugarin, G.R. No. 226119, October 1, 2018)

Enforcement of writ of execution cannot be restrained The RTC Judge's issuance of the assailed order dated November 12, 2002 granting the respondents' application for the writ of preliminary prohibitory injunction[enjoining the execution of the final and executory decision rendered in an ejectment suit by the Municipal Trial Court in Cities [MTCC], Branch 6, in Bacolod City]), constituted manifestly grave abuse of discretion. The respondents did not establish the existence of an actual right to be protected by injunction. They did not, to begin with, hold any enforceable claim to the property subject of the MTCC decision and of the writ of execution. The Memoranda and investigative report, whereby the DENR appeared to classify the property as foreshore land, conferred upon the respondents no interest or right in the land. The RTC Judge had plainly no factual and legal bases for enjoining the enforcement of the writ of execution through the TRO and the writ of preliminary injunction. He obviously acted arbitrarily and whimsically, because injunction protected only an existing right or actual interest in property. We further note that the RTC Judge expressly made the TRO effective until further orders from him. He disregarded Section 5, Rule 58 of the Rules of Court, which expressly stated that the life span of a TRO was only 20 days from service of the TRO on the party or person sought to be enjoined. Ignoring a rule as elementary as the 20-day life span of a TRO amounted to gross ignorance of law and procedure. His violation is seemingly made worse by the fact that he thereby usurped the authority of the Court as the only court with the power to issue a TRO effective until further orders (Garrido vs. Tortogo, G.R. No. 156358, August 17, 2011)

Venue of action for revival of judgment If the action for revival of judgment affects title to or possession of real property, or interest therein, then it is a real action that must be filed with the court of the place where the real property is located. Venue depends on nature of judgment sought to be revived. (Infante vs. Aran Builders, Inc., G.R. No. 156596, August 24, 2007)

Action for revival of judgment may prosper despite the lapse of ten years from entry of judgment, in the interest of justice Although the Rules of Court in relation to Art 1144 of the Civil Code would provide that an action upon a judgment must be brought within ten years from the time the right of action accrues, that is from finality of judgment, to allow a strict application of the rules, however, would result in an injustice to petitioners, considering (1) that respondent decided not to contest the RTC-43 decision and withdrew her appeal and (2) that no fault could be attributed to petitioners. Petitioners could not afford to engage the services of a private counsel and so were represented by the PAO. SAC-PAO in particular, failed them SAC-PAO never informed them of the abandonment by respondent of her appeal or of the entry of judgment. Under the circumstances, they could not be faulted for their subsequent actions. Due to the peculiarities of this case, the Court, in the exercise of its equity jurisdiction, relaxes the rules and decides to allow the action for the revival of judgment filed by petitioners. (Rubio vs. Alabata, G.R. No. 203947, February 26, 2014) Appeal from decision in an action for revival of judgment A party aggrieved by a decision of a court in an action for revival of judgment may appeal the decision, but only insofar as the merits of the action for revival is concerned. The original judgment, which is already final and executory, may no longer be reversed, altered, or modified. (Heirs of Miranda vs. Miranda, July 3, 2013) Execution of judgment by motion prescribes in 5 years; exception – when delay caused by actions of judgment debtor Two modes of enforcing the court’s judgment: a) by motion or b) by independent action.

- 24 Execution by motion is only available if the enforcement of the judgment was sought within five (5) years from the date of its entry. Execution by independent action is mandatory if the fiveyear prescriptive period for execution by motion had already elapsed. However, for execution by independent action to prosper – the Rules impose another limitation – the action must be filed before it is barred by the statute of limitations which, under the Civil Code, is ten (10) years from the finality of the judgment. For execution by motion to be valid, the judgment creditor must ensure the accomplishment of two acts within the five-year prescriptive period. These are: a) the filing of the motion for the issuance of the writ of execution; and b) the court’s actual issuance of the writ. In the instances when the Court allowed execution by motion even after the lapse of five years, we only recognized one exception, i.e., when the delay is caused or occasioned by actions of the judgment debtor and/or is incurred for his benefit or advantage. Petitioners, however, failed to show circumstances which would warrant the exception. Strangers to a case are not bound by the judgment rendered in it. Thus, a writ of execution can only be issued against a party and not against one who did not have his day in court. In this case, Subic Water never participated in the proceedings. The compromise agreement also did not carry the express conformity of Subic Water. (Olongapo City vs. Subic Water and Sewerage Co., Inc. G.R. No. 171626, August 6, 2014)

APPEAL AND REVIEW Any issue raised for the first time on appeal is barred by estoppel The Government argues that even if the action were to be deemed as one for sum of money, it must still be dismissed for lack of jurisdiction due to the Rebadullas' alleged failure to pay the required docket fees. This issue, however, appears to have been belatedly raised before this Court. Time and again, the Court held: "It is well-settled that no question will be entertained on appeal unless it has been raised in the proceedings below. Points of law, theories, issues and arguments not brought to the attention of the lower court, administrative agency or quasi-judicial body, need not be considered by a reviewing court, as they cannot be raised for the first time at that late stage. Basic considerations of fairness and due process impel this rule. Any issue raised for the first time on appeal is barred by estoppel." Furthermore, Section 1, Rule 9 of the Rules of Court provides that: Defenses and objections not pleaded. - Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. However, when it appears from the pleadings or the evidence on record that the court has no jurisdiction over the subject matter, that there is another action pending between the same parties for the same cause, or that the action is barred by a prior judgment or by statute of limitations, the court shall dismiss the claim. Moreover, although the payment of the proper docket fees is a jurisdictional requirement, the trial court may allow the plaintiff in an action to pay the same within a reasonable time before the expiration of the applicable prescriptive or reglementary period. If the plaintiff fails to comply with this requirement, the defendant should timely raise the issue of jurisdiction or else he would be considered in estoppel. In the latter case, the balance between the appropriate docket fees and the amount actually paid by the plaintiff will be considered a lien on any award he may obtain in his favor. (Rebadulla vs. Republic, G.R. No. 222159, January 31, 2018) The supervisory jurisdiction of a court over the issuance of a writ of certiorari cannot be exercised for the purpose of reviewing the intrinsic correctness of a judgment of the lower court – viz., on the basis either of the law or the facts of the case, or of the wisdom or legal soundness of the decision. Even if the findings of the court are incorrect, as long as it has jurisdiction over the case, such correction is normally beyond the province of certiorari. Where the error is not one of jurisdiction, but of an error of law or fact – a mistake of judgment – appeal is the proper remedy. (Vios vs. Pantangco, Jr., G.R. No. 163103, February 6, 2009)

- 25 Regional trial courts have jurisdiction over complaints for recovery of ownership or accion reivindicatoria. Section 8, Rule 40 of the Rules on Civil Procedure nonetheless allows the RTC to decide the case brought on appeal from the MTC which, even without jurisdiction over the subject matter, may decide the case on the merits. In the instant case, the MTC of Mambajao should have dismissed the complaint outright for lack of jurisdiction but since it decided the case on its merits, the RTC rendered a decision based on the findings of the MTC. (Provost vs. CA, G.R. No. 160406, June 26, 2006). The RTC should have taken cognizance of the case. If the case is tried on the merits by the Municipal Court without jurisdiction over the subject matter, the RTC on appeal may no longer dismiss the case if it has original jurisdiction thereof. Moreover, the RTC shall no longer try the case on the merits, but shall decide the case on the basis of the evidence presented in the lower court, without prejudice to the admission of the amended pleadings and additional evidence in the interest of justice. (Encarnacion vs. Amigo, G.R. No. 169793, September 15, 2006). Appellate jurisdiction of RTC over MTC decisions – assessed value of the property is immaterial The RTC erred when it agreed with the MTC’s decision to dismiss the case. At first glance, it appears that based on the P13,300.00 assessed value of the subject property as declared by respondents, the RTC would have no jurisdiction over the case. But the above-quoted provision refers to the original jurisdiction of the RTC. Section 22 of BP 129 vests upon the RTC the exercise of appellate jurisdiction over all cases decided by the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts in their respective territorial jurisdictions. Clearly then, the amount involved is immaterial for purposes of the RTC’s appellate jurisdiction. All cases decided by the MTC are generally appealable to the RTC irrespective of the amount involved (Serrano vs. Gutierrez, G.R. No. 162366, November 10, 2006). Certiorari proper remedy to question denial of notice of appeal by the RTC. PBCOM argues that the CA should have given due course to its Petition for Certiorari and Mandamus because it is the proper remedy to question the Order dated June 2, 2011 of the RTC denying its Notice of Appeal and that a motion for reconsideration is not required when the order assailed of is a patent nullity for having been issued without jurisdiction. Notably, in its petition before the CA, PBCOM assailed the RTC Order denying due course to its notice of appeal. A trial court's order disallowing a notice of appeal, which is tantamount to a disallowance or dismissal of the appeal itself, is not a decision or final order from which an appeal may be taken. The suitable remedy for the aggrieved party is to elevate the matter through a special civil action under Rule 65. Clearly, contrary to the CA's finding, PBCOM availed itself of the correct remedy in questioning the disallowance of its notice of appeal. Moreover, while it is a settled rule that a special civil action for certiorari under Rule 65 will not lie unless a motion for reconsideration is filed before the respondent court, there are welldefined exceptions established by jurisprudence, such as where the order is a patent nullity, as where the court a quo has no jurisdiction. The power of the RTC to dismiss an appeal is limited to the instances specified in Rule 41, Sec. 13 - for having been taken out of time or for non-payment of the docket and other lawful fees within the reglementary period. In other words, the RTC has no jurisdiction to deny a notice of appeal on an entirely different ground - such as "that an appeal is not a proper remedy." The authority to dismiss an appeal for being an improper remedy is specifically vested upon the CA under Rule 50, Section 1. (Philippine Bank of Communications vs. Court of Appeals, G.R. No. 218901, February 15, 2017) Appeal from order denying motion for reconsideration Rule 41, Section 1, paragraph (a) of the Rules of Court, which provides that ―[n]o appeal may be taken from [a]n order denying a x x x motion for reconsideration,‖ is based on the implied

- 26 premise in the same section that the judgment or order does not completely dispose of the case. The pertinent portion of Rule 41, Section 1 provides: Section 1. Subject of appeal. – An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by these Rules to be appealable. In other words, what Section 1 of Rule 41 prohibits is an appeal taken from an interlocutory order. An interlocutory order or judgment, unlike a final order or judgment, does ―not completely dispose of the case [because it leaves to the court] something else to be decided upon.‖ Appeals from interlocutory orders are generally prohibited to prevent delay in the administration of justice and to prevent ―undue burden upon the courts.‖ Orders denying motions for reconsideration are not always interlocutory orders. A motion for reconsideration may be considered a final decision, subject to an appeal, if ―it puts an end to a particular matter,‖ leaving the court with nothing else to do but to execute the decision. ―An appeal from an order denying a motion for reconsideration of an order of dismissal of a complaint is effectively an appeal of the order of dismissal itself.‖ It is an appeal from a final decision or order. The trial court’s order denying petitioner Republic of the Philippines’ motion for reconsideration of the decision granting respondent Ortigas the authority to sell its property to the government was not an interlocutory order because it completely disposed of a particular matter. An appeal from it would not cause delay in the administration of justice. Petitioner Republic of the Philippines’ appeal to the Court of Appeals, however, was properly dismissed because the Republic used the wrong mode of appeal. (Republic v. Ortigas, G.R. No.171496, March 3, 2014) Rule 43 – technical requirements Section 6 of Rule 43 of the Revised Rules of Court mandates that the petitioner must state the specific material dates showing that his/her petition was filed within the period fixed. The inclusion of a complete statement of material dates in a petition for review is essential to allow the Court to determine whether the petition was indeed filed within the period fixed in the rules. 36 The absence of such a statement will leave the Court at a quandary on whether the petition was in fact filed. However, in Capin-Cadiz v. Brent Hospital and Colleges, Inc., the Court excused therein petitioner's failure to indicate the date when the assailed decision was received. The Court ruled that the said error is not fatal, since the important date that must be alleged in the petition is the date when the petitioner received the resolution denying his/her motion for reconsideration. Over the years, the Court extended the same modicum of leniency, as shown in a long line of cases, where the Court emphasized that the "material date" for purposes of an appeal to the CA is the date of receipt of the lower court's order denying the motion for reconsideration. All other material dates may be gleaned from the records of the case, if reasonably evident.(Victoriano vs. Dominguez, G.R. No. 214794, July 23, 2018)

RELIEF FROM JUDGMENT No petition for relief in the Court of Appeals and Supreme Court While Rule 38 uses the phrase ―any court,‖ it refers only to Municipal/Metropolitan and Regional Trial Courts. The procedure in the CA and the Supreme Court are governed by separate provisions of the Rules of Court. There is no provision in the Rules of Court making the petition for rellief applicable in the CA or this Court.(Purcon vs. MRM Philippines, Inc., G.R. No. 182718, September 26, 2008) A petition for relief from judgment must be filed within: (1) 60 days from knowledge of the judgment, order or other proceeding to be set aside; and (2) six months from the entry of such judgment, order or other proceeding.

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These two periods must concur. Further, these periods could not be extended and could never be interrupted. The 60-day period under Section 3, Rule 38 of the Rules of Court should be reckoned from the time the aggrieved party has knowledge of the judgment or order sought to be set aside. In other words, for purposes of the 60-day period under Rule 38, knowledge of the finality of the judgment or order is irrelevant. It is clear that Lasam failed to comply with the 60-day period provided under Section 3, Rule 38 of the Rules of Court when she filed her petition for relief on January 22, 2013, or almost three years from the time she acquired knowledge of the order sought to be set aside. Likewise, she failed to comply with the six-month period provided in the same Rule when she filed her petition for relief more than eight months from the date of entry of the order sought to be set aside. (Lasam vs. PNB, G.R. No. 207433, December 5,, 2018)

ANNULMENT OF JUDGMENT Annulment of judgment, not appeal, proper remedy when summons not served on party In the action for the nullity of his marriage with respondent, petitioner claims that respondent deliberately indicated a non-existent address, instead of his real address; thus, he never received the summons and the Regional Trial Court failed to acquire jurisdiction over him. However, instead of directly assailing the Regional Trial Court August 25, 2003 Decision, which granted the nullity of his marriage in an action for annulment of judgment, petitioner chose to tackle the issue in his appeal of the Regional Trial Court October 28, 2011 Decision, which nullified the levy and sale by auction of the house and lot to Sales. This is clearly not the correct remedy. The Court of Appeals did not err in dismissing his appeal and in upholding the Regional Trial Court October 28, 2011 Decision, striking down the levy and sale by auction. Without a ruling from the Court of Appeals nullifying the Regional Trial Court August 25, 2003 Decision, which granted the nullity of petitioner and respondent's marriage and declared respondent as the exclusive owner of the house and lot, this Decision remains valid and subsisting. Moreover,it became final and executory as early as October 14, 2005; hence, the lower courts did not err in granting the petition for nullity of levy and sale at auction since respondent was the established exclusive owner of the house and lot. (Tortal vs. Tamaguchi, G. R. No. 212683, November 12, 2018)

A petition for annulment of judgment is an action in personam We disagree with the CA's disquisition that since jurisdiction over the res is sufficient to confer jurisdiction on the RTC, the jurisdiction over the person of herein petitioner may be dispensed with. Jurisdiction of the court over the person of the defendant or respondent cannot be acquired notwithstanding his knowledge of the pendency of a case against him unless he was validly served with summons. Such is the important role a valid service of summons plays in court actions. For purposes of summons, this Court holds that the nature of a petition for annulment of judgment is in personam, for the following reasons: First, a petition for annulment of judgment is an original action, which is separate, distinct and independent of the case where the judgment sought to be annulled is rendered. It is not a continuation or progression of the same case. Thus, regardless of the nature of the original action in the decision sought to be annulled, be it in personam, in rem or quasi in rem, the respondent should be duly notified of the petition seeking to annul the court's decision over which the respondent has a direct or indirect interest. To consider a petition for annulment of judgment as either in rem or quasi in rem, would create an absurdity wherein the petitioner would simply file the petition in court, without informing the respondent of the same, through a valid service of summons. Second, a petition for annulment of judgment and the court's subsequent decision thereon will affect the parties alone. It will not be enforceable against the whole world. Any judgment therein will eventually bind only the parties properly impleaded. Petition for annulment of judgment is an improper remedy

- 28 In any event, respondent's petition to annul the MeTC's July 26, 2006 judgment cannot prosper for being the wrong remedy. An action for annulment of judgment cannot and is not a substitute for the lost remedy of appeal. Its obvious rationale is to prevent the party from benefiting from his inaction or negligence. In this case, it is evident that respondent failed to interpose an appeal, let alone a motion for new trial or a petition for relief from the MeTC July 26, 2006 Decision rendering the same final and executory. Hence, the October 30, 2007 Order granting its execution was properly issued. It is doctrinal that when a decision has acquired finality, the same becomes immutable and unalterable. By this principle of immutability of judgments, the RTC is now precluded from further examining the MeTC Decision and to further dwell on petitioner's perceived errors therein, i.e., that petitioners' complaint has no cause of action for failure to make a prior demand to pay and to vacate; and, that petitioner failed to refer the case before the barangay. (Frias vs. Alcayde, G.R. No. 194262, February 28, 2018) Rule 47 petition granted only under exceptional circumstances Section 1, Rule 47 of the 1987 Rules of Civil Procedure provides that the remedy of annulment of judgments or final orders/resolutions of a Regional Trial Court in civil actions can only be availed of where "the ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies are no longer available through no fault of the petitioner." A petition for annulment of judgment under Rule 47 is a remedy granted only under exceptional circumstances where a party, without fault on his part, has failed to avail of the ordinary or other appropriate remedies provided by law. Such action is never resorted to as a substitute for a party’s own neglect in not promptly availing of the ordinary or other appropriate remedies. (Republic of the Philippines vs. Spouses De Castro , G.R. No. 189724, February 7, 2011) Rule 47 applies only to annulment by the Court of Appeals of judgments or final orders and resolutions in civil cases of Regional Trial Courts – it does not apply to criminal actions (People vs. Bitanga, G.R. No. 159222, June 26 2007); final judgments or orders of quasijudicial tribunals or administrative bodies such as the National Labor Relations Commission, the Ombudsman, the Civil Service Commission, the Office of the President, and the PARAD (Fraginal vs. Paranal, G.R. No. 150207, February 223, 2007).; or to nullification of decisions of the Court of Appeals (Grande vs. University of the Philippines, G.R. No. 148456, September 15, 2006). Although the RTC has the authority to annul final judgments, such authority pertains only to final judgments rendered by inferior courts and quasi-judicial bodies of equal ranking with such inferior courts. Given that DARAB decisions are appealable to the CA, the inevitable conclusion is that the DARAB is a co-equal body with the RTC and its decisions are beyond the RTC’s control (Springfield Development Corp. vs. Presiding Judge of RTC of Misamis Oriental, Branch 40, G.R. No. 142628, February 6, 2007). The CA has no jurisdiction over a petition for annulment of judgment under Rule 47 against a decision of the Housing and Land Use Regulatory Board, a quasi-judicial body. Rule 47 allows a resort to the CA only in instances where the judgment challenged was rendered by regional trial courts. (Imperial vs. Armes, G.R. No.178842, January 30, 2017)

Extrinsic fraud as ground for annulment of judgment For purposes of the application of Rule 47, gross negligence cannot be equated to the extrinsic fraud that Rule 47 requires to be the ground for an annulment of judgment. By its very nature, extrinsic fraud relates to a cause that is collateral in character, i.e., it relates to any fraudulent act of the prevailing party in litigation which is committed outside of the trial of the case, where the defeated party has been prevented from presenting fully his side of the cause, by fraud or deception practiced on him by his opponent. Even in the presence of fraud, annulment will not lie unless the fraud is committed by the adverse party, not by one’s own lawyer. In the latter case, the remedy of the client is to proceed against his own lawyer and not to re- litigate the case where judgment had been rendered. Also, it was Pinasukan’s own fault for not being updated with the proceedings of its case and merely relying on its lawyer (Pinausukan Seafood House vs. FEBTC, G.R. No. 159926, January 20, 2014)

- 29 Lack of due process as ground for annulment of judgment The lack of any demonstration of effort on the part of the sheriff to serve the summons personally upon petitioner is a deviation from this court’s previous rulings that personal service is the preferred mode of service, and that the sheriff must narrate in his or her return the efforts made to effect personal service. Thus, the sheriff’s return in this case was defective. No substituted service or service by publication will be allowed based on such defective return. The issuance of a judgment without proper service of summons is a violation of due process rights. The judgment, therefore, suffers a jurisdictional defect. Petitioner was already notified of respondent’s action for annulment of petitioner’s title when she filed a motion for new trial and, later, a petition for certiorari. At that time, petitioner was deemed, for purposes of due process, to have been properly notified of the action involving her title to the property. Lack of jurisdiction could have already been raised in an action for annulment of judgment. Thus, when petitioner erroneously filed her motion for new trial and petition for certiorari instead of an action for annulment of judgment, she was deemed to have voluntarily participated in the proceedings against her title. The actions and remedies she chose to avail bound her. Petitioner’s failure to file an action for annulment of judgment at this time was fatal to her cause. We cannot conclude now that she was denied due process. (De Pedro vs. Romasan Development Corporation, G.R. No. 194751, November 26, 2014) Negligence of counsel The general rule is that the negligence of counsel binds the client, even mistakes in the application of procedural rules. An exception to this doctrine is when the negligence of counsel is so gross that the due process rights of the client were violated. In this case, the manner with which the Law Office of Ramirez Lazaro & Associates Law handled the case of petitioner, as a collaborating counsel shows gross negligence and utter incompetence, when it failed to attach a Notice of Hearing when it filed the motion for reconsideration before the RTC on October 4, 2010, and antedated the filing thereof to make it appear that it was filed on time. As a result thereof, the RTC in an Order dated December 10, 2010, denied the motion for reconsideration and considered the same as a mere scrap of paper. Worse, the August 13, 2010 Decision of the RTC lapsed into finality. Thus, petitioner lost its right to appeal the Decision and petitioner's petition for relief was denied. Clearly, the rights of petitioner were deprived due to its collaborating counsel's palpable negligence and thereof is not bound by it . (B.E. San Diego, Inc. vs. Bernardo, G.R. No. 233135, December 5, 2018)

PROVISIONAL REMEDIES PRELIMINARY ATTACHMENT A writ of preliminary attachment is not extinguished by the execution of a compromise agreement among the parties While the provisions of Rule 57 are silent on the length of time within which an attachment lien shall continue to subsist after the rendition of a final judgment, jurisprudence dictates that the said lien continues until the debt is paid, or the sale is had under execution issued on the judgment or until the judgment is satisfied, or the attachment discharged or vacated in the same manner provided by law. Applying these principles, the Court finds that the discharge of the writ of preliminary attachment against the properties of Sps. Lazaro was improper. Records indicate that while the parties have entered into a compromise agreement which had already been approved by the RTC in its January 5, 2007 Amended Decision, the obligations thereunder have yet to be fully complied with – particularly, the payment of the total compromise amount of P2,351,064.80. Hence, given that the foregoing debt remains unpaid, the attachment of Sps. Lazaro’s properties should have continued to subsist. The lien or security obtained by an attachment even before judgment, is in the nature of a vested interest which affords specific security for the satisfaction of the debt put in suit. Verily, the lifting of the attachment lien would be tantamount to an abdication of Lim, Jr.’s rights over Sps. Lazaro’s properties which the Court, absent any justifiable ground therefor, cannot allow. (Lim, Jr. vs. Lazaro, G.R. No. 185734, July 3, 2013)

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Improper issuance and service of writ of attachment A distinction should be made between issuance and implementation of the writ of attachment. This is necessary to determine when jurisdiction over the defendant should be acquired to validly implement the writ. The grant of the provisional remedy of attachment involves three stages: first, the court issues the order granting the application; second, the writ of attachment issues pursuant to the order granting the writ; and third, the writ is implemented. For the initial two stages, it is not necessary that jurisdiction over the person of the defendant be first obtained, but once the implementation of the writ commences, the court must have acquired jurisdiction over the defendant (Mangila vs. Court of Appeals, G.R. No. 125027, August 12, 2002). Preference of levy on attachment duly registered over a prior unregistered sale The settled rule is that levy on attachment, duly registered, takes preference over a prior unregistered sale. The preference created by the levy on attachment is not diminished even by the subsequent registration of the prior sale. This is so because an attachment is a proceeding in rem. It is against the particular property, enforceable against the whole world. The attaching creditor acquires a specific lien on the attached property which nothing can subsequently destroy except the very dissolution of the attachment or levy itself. The lien continues until the debt is paid, or sale is had under execution issued on the judgment, or until the judgment is satisfied, or the attachment discharged or vacated in some manner provided by law. Thus, in the registry, the attachment in favor of respondents appeared in the nature of a real lien when petitioner had his purchase recorded. The effect of the notation of said lien was to subject and subordinate the right of petitioner, as purchaser, to the lien (Valdevieso vs. Damalerio, G.R. No. 133303, February 17, 2005, 451 SCRA 664, 670).

PRELIMINARY INJUNCTION Guidelines on issuance of a temporary restraining order A temporary restraining order may be issued ex parte "to preserve the status quo until the hearing of the application for preliminary injunction [,] which cannot be issued ex parte." Otherwise stated, a trial court may issue a temporary restraining order even without a prior hearing for a limited period of 72 hours "if the matter is of extreme urgency and the applicant will suffer grave injustice and in-eparable injury." In this instance, a summary hearing, separate from the application of the preliminary injunction, is required only to determine if a 72-hour temporary restraining order should be extended. A trial court may also issue ex parte a temporary restraining order for 20 days [i]f it shall appear from facts shown by affidavits or by the verified application that great or irreparable injury would result to the applicant before the matter can be heard on notice." The trial court has 20 days from its issuance to resolve the application for preliminary injunction. If no action is taken on the application for preliminary injunction during this period, the temporary restraining order is deemed to have expired. Notably, the Rules do not require that a hearing on the application for preliminary injunction be conducted during this period.(Rule 58, Section 5) While Rule 58, Section 4(d) requires that the trial court conduct a summary hearing in every application for temporary restraining order regardless of a grant or denial, Rule 58, Section 5 requires a hearing only if an application for preliminary injunction is granted. Thus, Section 5 states that "[n]o preliminary injunction shall be granted without hearing and prior notice to the party or person sought to be enjoined." Inversely stated, an application for preliminary injunction may be denied even without the conduct of a hearing separate from that of the summary hearing of an application for the issuance of a temporary restraining order. (Evy Construction and Development Corporation Vs.Valiant Roll Forming Sales Corporation, G.R. No. 207938, October 11 , 2017)

Original action for injunction outside the jurisdiction of the Court of Appeals What petitioner filed with the appellate court was an original action for preliminary injunction which is a provisional and extraordinary remedy calculated to preserve or maintain the status quo of things and is availed of to prevent actual or threatened acts, until the merits of the case can be heard. An original action for injunction is outside the jurisdiction of the Court of Appeals,

- 31 however. Under B.P. 129, the appellate court’s jurisdiction to grant a writ of preliminary injunction is limited to actions or proceedings pending before it (Section 2 of Rule 58) or in a petition for certiorari, prohibition or mandamus (Section 7 of Rule 65). In the case at bar, petitioner’s complaint-in-intervention in Civil Case No. 00-196 was pending before Branch 256 of the Muntinlupa RTC, not with the appellate court. (Allgemeine-Bau-Chemie Phils., Inc., vs. Metropolitan Bank & Trust Co., Honorable N. C. Perello, G.R. No. 159296 , February 10, 2006). The RTC can take cognizance of the injunction complaint, which ―is a suit which has for its purpose the enjoinment of the defendant, perpetually or for a particular time, from the commission or continuance of a specificact, or his compulsion to continue performance of a particular act.‖ Actions for injunction and damages lie within the exclusive and original jurisdiction of the RTC pursuant to Section 19 of Batas Pambansa Blg 129, otherwise known as the Judiciary Reorganization Act of 1980, as amended by RA 7691.(Republic vs. Principalia Management, G.R. No. 198426, September 2, 2015) Injunction to restrain extrajudicial foreclosure involving several parcels located in different provinces Separate injunction suits may be filed for breach of mortgage contract with injunction to restrain extrajudicial foreclosure proceedings of mortgaged properties located in different provinces without violating the rule against forum shopping since injunction is enforceable only within the territorial limits of the trial court, thus the mortgagor is left without remedy as to the properties located outside the jurisdiction of the issuing court unless an application for injunction is made with another court which has jurisdiction over the latter court. However, the applicant is required to pay only one filing fee regardless of the number of properties to be foreclosed so long as the application covers only one transaction or indebtedness. (Benguet Management Corporation vs. Court of Appeals, September 18, 2003, 411 SCRA 347).

When damages irreparable Damages are irreparable where there is no standard by which their amount can be measured with reasonable accuracy. In this case, petitioners have alleged that the loss of the public market entails costs of about P30,000,000 in investments, P100,000 monthly revenue in rentals, and amounts as yet unquantified – but not unquantifiable – in terms of the alleged loss of jobs of APRI’s employees and potential suits that may be filed by the leaseholders of the public market for breach of contract. Clearly, the injuries alleged by petitioners are capable of pecuniary estimation. Any loss petitioners may suffer is easily subject to mathematical computation and, if proven, is fully compensable by damages. Thus, a preliminary injunction is not warranted. With respect to the allegations of loss of employment and potential suits, these are speculative at best, with no proof adduced to substantiate them. (Second Division Australian Professional Realty, Inc. vs. Munipality of Padre Garcia, Batangas, G.R. No. 183367, March 14, 2012) Injury is considered irreparable if "there is no standard by which [its] amount can be measured with reasonable accuracy." The injury must be such that its pecuniary value cannot be estimated, and thus, cannot fairly compensate for the loss. For this reason, the loss of goodwill and business reputation, being unquantifiable, would be considered as grave and irreparable damage. Petitioner alleges that the execution sale and the prior annotations on its title caused "crucial investors and buyers‖ to withdraw, "notwithstanding the considerable costs and expenses [it] already incurred." This is the grave and irreparable damage it sought to be protected from. However, the feared "damage" was caused by the execution sale and the annotations already made on the title. It even admits that the annotations were "impairing the progress of [its] housing development." In other words, petitioner failed to establish the urgent and paramount necessity of preventing further annotations on the title. Thus, what petitioner actually seeks is the removal of the annotations on its title, which is precisely what it asked for in its Complaint for Quieting of Title/Removal of Cloud, Annulment of Execution Sale and Certificate of Sale, and Damages before the trial court. Injunctive relief would have no practical effect considering that the purported damage it seeks to be protected from has already been done. Therefore, its proper remedy is not the issuance of an injunctive writ but to thresh out the merits of its Complaint before the trial court (Evy Construction and

- 32 Development Corporation Vs.Valiant Roll Forming Sales Corporation, G.R. No. 207938, October 11 , 2017)

CHANGE IN THE RULE The last paragraph which was added to Section 5, Rule 58 states that a higher court (RTC, Court of Appeals, Sandiganbayan, Court of Tax Appeals) which issues a writ of preliminary injunction against a lower court, board, officer or quasi-judicial agency must ―decide the main case or petition within six (6) months from the issuance of the writ.‖ (AM 07-7-12, effective December 27, 2007). Purpose: in order not to unduly delay the main case lodged in the lower court. REPLEVIN Only the owner of the property or one entitled to the possession thereof may file an action for replevin. Siy appointed Ong as his agent to sell the subject vehicle, surrendering to Ong all documents of title. Ong was able to sell the vehicle to Chua, but failed to remit the proceeds of the sale to Siy. His guarantee checks bounced as well.. Chua, in turn, sold the vehicle to Tomlin, who registered it in his name. Siy filed a complaint for estafa and carnapping against Ong, and also a complaint for replevin against Ong, Chua and Tomlin. Will the replevin case prosper? No. Rule 60 allows a plaintiff in an action for the recovery of possession of personal property to apply for a writ of replevin if it can be shown that he is the owner of the property claimed or is entitled to the possession thereof. In this case, when Siy authorized Ong to sell the vehicle and Ong subsequently sold the same, Siy ceased to be the owner of the vehicle and also lost his right of possession over it. Hence, Siy may no longer seek the return thereof through replevin. (Siy vs. Tomlin, G.R. No. 205998, April 24, 2017)

SPECIAL CIVIL ACTIONS  Declaratory relief A petition for declaratory relief should be brought ―in the appropriate regional trial court.‖ The purpose of the petition is to ask the court to determine any question of construction or validity arising from the subject matter thereof, and for the declaration of rights and duties thereunder. Hence, the subject matter of such petition raises issues which are not capable of pecuniary estimation and must be filed in the RTC (Sec. 19 [1], BP 129; Sec. 1, Rule 63). It would be error to file the petition the petition with the Supreme Court which has no original jurisdiction to entertain a petition for declaratory relief (Ortega vs. Quezon City Government, G.R. No. 161400, September 2, 2005).  However, where the action is for quieting of title which is a similar remedy under the second paragraph of Sec. 1 of Rule 63, the jurisdiction will depend upon the assessed value of the property. Since petitioners averred in the Complaint that they had already been deprived of the possession of their property, the proper remedy for them is the filing of an accion publiciana or an accion reivindicatoria, not a case for declaratory relief. Petitioners’ Complaint contained sufficient allegations for an accion reivindicatoria. Jurisdiction over such an action would depend on the value of the property involved. Given that the subject property herein is valued only atP410.00, then the MTC, not the RTC, has jurisdiction over an action to recover the same. The RTC, therefore, did not commit grave abuse of discretion in dismissing, without prejudice, petitioners’ Complaint in Civil Case No. 6868 for lack of jurisdiction. (Malana vs. Tappa, G.R. No. 181303, September 17, 2009)

 The decision of the BSP Monetary Board cannot be a proper subject matter of a petition for declaratory relief since it was issued by the BSP Monetary Board in the exercise of its quasi-judicial powers or functions. The Monetary Board’s authority to issue the questioned MB Resolution emanated from its powers under Section 37 of RA No. 7653 and Section 66 of RA No. 8791 to impose, at its discretion, administrative sanctions,

- 33 upon any bank for violation of any banking law. Philippine Veterans Bank violated Section 54 of RA No. 8791 by engaging in an insurance activity which is prohibited by such law. To be precise, the law so provides thus: "SEC. 54. Prohibition to Act as Insurer. A bank shall not directly engaged in the business as the insurer." PVB’s remedy is to file a petition for review with the CA under Rule 43 (Monetary Board vs. Philippine Veterans Bank. G.R. No. 189571, January 21, 2015)

CERTIORARI CHANGES IN THE RULE Period to file petition for certiorari now inextendible. Last paragraph of Section 4, Rule 65: ―No extension of time to file the petition shall be granted except for compelling reasons and in no case exceeding fifteen (15) days‖ has been DELETED by A.M. No. 07-7-12-SC, effective December 27, 2007. Hence, petitions for certiorari must be filed strictly within 60 days from notice of judgment or from the order denying a motion for reconsideration. If the Court intended to retain the authority of the proper courts to grant extensions under Section 4 of Rule 65, the paragraph providing for such authority would have been preserved. The removal of the said paragraph under the amendment by A.M. No. 07-7-12-SC of Section 4, Rule 65 simply meant that there can no longer be any extension of the 60-day period within which to file a petition for certiorari. (Laguna Metts Corporation vs. Court of Appeals, G.R. No. 185220, July 27, 2009) The general rule, as held in Laguna Metts Corporation, is that the filing of a petition for certiorari is non-extendible. However, there are exceptions, as stated in Domdom vs. Sandiganbayan, Labao vs. Flores and Mid-Islands Power Generation vs. Court of Appeals, which can be summarized under two main grounds: to serve substantial justice or to safeguard strong public interest (Republic vs. St. Vincent de Paul Colleges, Inc., G.R. No. 192908, August.22, 2012) Under exceptional cases, the 60-day period may be extended subject to the court’s sound discretion. However, there should be an effort on the part of the litigant invoking liberality to satisfactorily explain why he or she was unable to abide by the rules. Here, the reason offered for availing of the motion for extension is the heavy workload of private respondent’s counsel, which is hardly a compelling or meritorious reason. Time and again, we have held that the excuse of "heavy workload is relative and often self-serving. Standing alone, it is not a sufficient reason to deviate from the 60-day rule." (Thenamaris Philippines, Inc vs. Court of Appeals, G.R. No. 191215, February 3, 2014)

What is judicial courtesy? Effect of amendment of Rule 65, Section 7 by A.M. No. 07-7-12-SC, December 12, 2007 on the principle of judicial courtesy. Judicial courtesy can no longer be used as an excuse by courts or tribunals not to proceed with the principal case. Section 7. Expediting proceedings; injunctive relief. - The court in which the petition is filed may issue orders expediting the proceedings, and it may also grant a temporary restraining order or a writ of preliminary injunction for the preservation of the rights of the parties pending such proceedings. The petition shall not interrupt the course of the principal case unless a temporary restraining order or a writ of preliminary injunction has been issued against the public respondent from further proceeding in the case. The public respondent shall proceed with the principal case within ten (10) days from the filing of a petition for certiorari with a higher court or tribunal, absent a temporary restraining order or a preliminary injunction, or upon its expiration. Failure of the public respondent to proceed with the principal case may be a ground for an administrative charge.

- 34 Further amendment of Rule 65: Section 8. Proceedings after comment is filed. - After the comment or other pleadings required by the court are filed, or the time for the filing thereof has expired, the court may hear the case or require the parties to submit memoranda. If, after such hearing or filing of memoranda or the expiration of the period for filing, the court finds that the allegations of the petition are true, it shall render judgment for such relief to which the petitioner is entitled. However, the court may dismiss the petition if it finds the same patently without merit or prosecuted manifestly for delay, or if the questions raised therein are too unsubstantial to require consideration. In such event, the court may award in favor of the respondent treble costs solidarily against the petitioner and counsel, in addition to subjecting counsel to administrative sanctions under Rules 139 and 139-B of the Rules of Court. The Court may impose motu proprio, based on rep ipsa loquitur, other disciplinary sanctions or measures on erring lawyers for patently dilatory and unmeritorious petitions for certiorari. This amendment seeks to discourage litigants and their counsel from filing baseless petitions for certiorari. Does the CTA have jurisdiction over a special civil action for certiorari assailing an interlocutory order issued by the RTC in a local tax case? YES. The power of the CTA includes that of determining whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the RTC in issuing an interlocutory order in cases falling within the exclusive appellate jurisdiction of the tax court. It, thus, follows that the CTA, by constitutional mandate, is vested with jurisdiction to issue writs of certiorari in these cases. It would be somewhat incongruent with the pronounced judicial abhorrence to split jurisdiction to conclude that the intention of the law is to divide the authority over a local tax case filed with the RTC by giving to the CA or this Court jurisdiction to issue a writ of certiorari against interlocutory orders of the RTC but giving to the CTA the jurisdiction over the appeal from the decision of the trial court in the same case. It is more in consonance with logic and legal soundness to conclude that the grant of appellate jurisdiction to the CTA over tax cases filed in and decided by the RTC carries with it the power to issue a writ of certiorari when necessary in aid of such appellate jurisdiction. The supervisory power or jurisdiction of the CTA to issue a writ of certiorari in aid of its appellate jurisdiction should co-exist with, and be a complement to, its appellate jurisdiction to review, by appeal, the final orders and decisions of the RTC, in order to have complete supervision over the acts of the latter. (City of Manila vs. Cuerdo, G.R. No. 175723, February 4, 2014. En Banc)



The CA's original jurisdiction over a petition for certiorari assailing the DOJ resolution in a preliminary investigation involving tax and tariff offenses was necessarily transferred to the CTA pursuant to Section 7 of R.A. No. 9282,and that such petition shall be governed by Rule 65 of the Rules of Court, as amended. Accordingly, it is the CTA, not the CA, which has jurisdiction over the petition for certiorari assailing the DOJ resolution of dismissal of the BOC's complaint-affidavit against private respondents for violation of the TCCP. (Bureau of Customs vs. Hon. Devanadera, G.R. No. 193253, September 8, 2015)

Motion for reconsideration sine qua non for filing certiorari petition. Exceptions: Although it is a settled rule that a motion for reconsideration is a condition sine qua non for the filing of a petition for certiorari, such rule admits well-defined exceptions. These are: a. where the order is a patent nullity, as where the court a quo has no jurisdiction;

- 35 b. where the questions raised in the certiorari proceedings have been duly raised and passed upon by the lower court, or are the same as those raised and passed upon in the lower court; c. where there is an urgent necessity for the resolution of the question and any further delay would prejudice the interests of the Government or of the petitioner or the subject matter of the action is perishable; d. where, under the circumstances, a petitioner was deprived of due process and there is extreme urgency for relief; e. where, in a criminal case, relief from an order of arrest is urgent and the granting of such relief by the trial court is improbable; f. where the proceedings in the lower court are a nullity for lack of due process; g. where the proceeding were ex parte or in which the petitioner had no opportunity to object; and h. where the issue raised is one purely of law or where public interest is involved. (Bucal vs. Bucal, G.R. No. 206957, June 17, 2015)

While it is true that a motion for reconsideration is a condition sine qua non for the filing of a Petition for Certiorari, the purpose of which is to grant an opportunity for the court to correct any actual or perceived error attributed to it by re-examination of the legal and factual circumstances of the case, it is not, however, an ironclad rule as it admits well-defined exceptions. One of these exceptions is where the questions raised in the certiorari proceeding have been duly raised and passed upon by the lower court, or are the same as those raised and passed upon in the lower court. This exception is applicable in the instant case. To note, in the petitioners' Urgent Ex-Parte Manifestation and Motion for the implementation of the February 13, 1998 Decision of the RTC Malolos (Br. 78), as well as in their Reply, they vehemently insisted that the period within which to file a motion for execution of the said Decision was deemed suspended with their filing of an action for annulment of title and document involving the subject property before Br. 15 to enable a complete and effective relief in their favor. But Br. 78 denied the said Urgent ExParte Manifestation and Motion reasoning that the petitioners' filing of another case involving the subject property before Br. 15 does not toll the running of the period to file a motion for execution. It is clear therefrom that any motion for reconsideration would then be superfluous, as Br. 78 had already passed upon and resolved the very same issue raised in the Petition for Certiorari before the CA. It is, therefore, a reversible error on the part of the CA to outrightly dismiss the petitioners' petition based on that procedural ground. (Sps. Davis vs. Davis, G.R. No. 233489, March 14, 2018) Motion for reconsideration still required even if prohibited by the agency’s internal rules Before a petition for certiorari under Rule 65 of the Rules of Court may be availed of, the filing of a motion for reconsideration is a condition sine qua non to afford an opportunity for the correction of the error or mistake complained of. Considering that a decision of the Secretary of Labor is subject to judicial review only through a special civil action of certiorari and, as a rule, cannot be resorted to without the aggrieved party having exhausted administrative remedies through a motion for reconsideration, the aggrieved party, must be allowed to move for a reconsideration of the same so that he can bring a special civil action for certiorari before the Supreme Court. While a government office may prohibit altogether the filing of a motion for reconsideration with respect to its decisions or orders, the fact remains that certiorari inherently requires the filing of a motion for reconsideration, which is the tangible representation of the opportunity given to the office to correct itself. Unless it is filed, there could be no occasion to rectify. Worse, the remedy of certiorari would be unavailing. Simply put, regardless of the proscription against the filing of a motion for reconsideration, the same may be filed on the assumption that rectification of the decision or order must be obtained, and before a petition for certiorari may be instituted. (Philtranco Service Enterprises vs. Philtranco Service Union, G.R. No. 180962, February 26, 2014)

EXPROPRIATION

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Rep. Act No. 8974 mandates immediate payment of the initial just compensation prior to the issuance of the writ of possession in favor of the government. RA 8974 requires that the government make a direct payment to the property owner before the writ may issue. Such payment is based on the zonal valuation of the BIR in the case of land, the value of the improvements or structures under the replacement cost method, or if no such valuation is available and in cases of utmost urgency, the proffered value of the property to be seized. It is the plain intent of RA 8974 to supersede the system of deposit under Rule 67 with the scheme of ―immediate payment‖ in cases involving national government infrastructure projects (Republic vs. Gingoyon, G.R. No. 166249, December 19, 2005). February 26, 2014 Section 9 of Rule 67 empowers the court to order payment to itself of the proceeds of the expropriation whenever questions of ownership are yet to be settled. There is no reason why this rule should not be applied even where the settlement of such questions is to be made by another tribunal, i.e., the DARAB. (Philippine Veterans Bank vs. Bases Conversion Development Authority, G.R. No. 173085, January 19, 2011) When the property already appears to belong to the Republic, there is no sense in the Republic instituting expropriation proceedings against itself. It can still, however, file a complaint for expropriation against the private persons occupying the property. In such an expropriation case, the owner of the property is not an indispensable party.(Republic vs. Mangotara, G.R. No. 170375, October 13, 2010) FORECLOSURE OF MORTGAGE

When title has been consolidated in name of mortgagee, writ of possession is a matter of right. Once a mortgaged estate is extrajudicially sold, and is not redeemed within the reglementary period, no separate and independent action is necessary to obtain possession of the property. The purchaser at the public auction has only to file a petition for issuance of a writ of possession pursuant to Section 33 of Rule 39 of the Rules of Court. (DBP vs. Spouses Gatal, G.R. No. 138567, March 4, 2005).

Issuance of writ of possession a ministerial duty. Respondent bank consolidated its ownership over the property and a new title was consolidated in its favor. Hence, it became the ministerial duty of the court to issue a writ of possession applied for by respondent bank. Despite the pending suit for annulment of the mortgage and notice of sheriff’s sale, respondent bank is entitled to a writ of possession, without prejudice to the eventual outcome of the case (Sps. Dato vs. Bank of Philippine Islands, G.R. No. 181873, November 27, 2013)  When writ of possession not a ministerial duty Unlike a judicial foreclosure of real estate mortgage under Rule 68 of the Rules of Court where an action for foreclosure is filed before the RTC where the mortgaged property or any part thereof is situated, any property brought within the ambit of Act 3135 is foreclosed by the filing of a petition, not with any court of justice, but with the office of the sheriff of the province where the sale is to be made. As such, a third person in possession of an extrajudicially foreclosed property, who claims a right superior to that of the original mortgagor, is given no opportunity to be heard on his claim. It stands to reason, therefore, that such third person may not be dispossessed on the strength of a mere ex parte possessory writ, since to do so would be tantamount to his summary ejectment, in violation of the basic tenets of due process. (Villanueva vs. Cherdan Lending Investors Corporation, G.R. No. 177881, October 13, 2010; Marquez vs. Alindog, G.R. No. 184045, January 2, 2014) 

The remedy of a party from the trial court’s order granting the issuance of a writ of possession is to file a petition to set aside the sale and cancel the writ of possession, and the aggrieved party may then appeal from the order denying or granting said petition (Sec.8, Act 3135). When a writ of possession had already been issued as in this case, the proper remedy is an APPEAL and not a petition for certiorari. To be sure, the trial court’s order granting the writ of possession is final. The soundness of the order granting the

- 37 writ of possession is a matter of judgment, with respect to which the remedy of the party aggrieved is ordinary appeal. As respondent availed of the wrong remedy, the appellate court erred in not dismissing outright the petition for certiorari. (Producers Bank of the Philippines vs. Excelsa Industries, Inc, G.R. No. 173820, April 16, 2012)

Alternative remedies of mortgage creditor – election of one remedy operates as a waiver of the other A remedy is deemed chosen upon the filing of the suit for the collection or upon the filing of the complaint in an action for foreclosure of mortgage under Rule 68. Here, since respondent opted to exercise the third option of extrajudicial foreclosure against the estates of Sps. Maglasang under Section 7, Rule 86, respondent is now precluded from fiing a suit to recover any deficiency amount (Heirs of Maglasang vs. Manila Banking Corporation, G.R. No. 171206, September 23, 2013)

FORCIBLE ENTRY AND UNLAWFUL DETAINER Not being a public document, the purported Deed of Donation of the property to the City of Naga is void. A void or inexistent contract has no force and effect from the very beginning, as if it had never been entered into. It is equivalent to nothing and is absolutely wanting in civil effects. It cannot be validated either by ratification or prescription. Void contracts may not be invoked as a valid action or defense in any, court proceeding, including an ejectment suit. A certificate of title has a superior probative value as against that of an unregistered deed of conveyance in ejectment cases. Accordingly, as against the City's unregistered claim, the Torrens title in the name of Macario and Gimenez must prevail, conferring upon the registered owners the better right of possession. This superior or preferred right of possession applies to petitioners as Macario 's hereditary successors who have stepped into said decedent's shoes by operation of law. The rightful possessor in an unlawful detainer case is entitled to the return of the property and to recover damages, which refer to "rents" or "the reasonable compensation for the use and occupation of the premises," or the "fair rental value of the property" and attorney's fees and costs. More specifically, recoverable damages are "those which the plaintiff could have sustained as a mere possessor, or those caused by the loss of the use and occupation of the property. Decision is binding on privies or parties deriving possession from the City In its March 7, 2011 Decision, the CA held that the government offices occupying the subject property, other than the City government of Naga, could not be ordered to vacate the same because they were not parties to the case. Jurisprudence, however, instructs that: A judgment directing a party to deliver possession of a property to another is in personam. x x x Any judgment therein is binding only upon the parties properly impleaded and duly heard or given an oppo1tunity to be heard. However, this rule admits of the exception, such that even a non-party may be bound by the judgment in an ejectment suit where he is any of the following: (a) trespasser, squatter or agent of the defendant fraudulently occupying the property to frustrate the judgment; (b) guest or occupant of the premises with the permission of the defendant; ( c) transferee pendente lite; (d) sublessee; (e) co-lessee; or (f) member of the family, relative or privy of the defendant. Exceptions (b) and (f) are clearly applicable. There is no dispute that the government offices were allowed by the City to occupy the subject property. Deriving their possession from the City, they are unmistakably the City's privies in the occupation of the premises. Thus, they too are bound by the judgment in this case. (Heirs of Mariano vs. City of Naga, G.R. No. 197743, March 12, 2018) Anyone of the co-owners may bring an action for ejectment without joining the others

- 38 Article 487 of the Civil Code provides that anyone of the co-owners may bring an action for ejectment without joining the others. The action is not limited to ejectment cases but includes all kinds of suits for recovery of possession because the suit is presumed to have been instituted for the benefit of all. In an unlawful detainer case, the physical or material possession of the property involved, independent of any claim of ownership by any of the parties, is the sole issue for resolution. But where the issue of ownership is raised, the courts may pass upon said issue in order to determine who has the right to possess the property. This adjudication, however, is only an initial determination of ownership for the purpose of settling the issue of possession, the issue of ownership being inseparably linked thereto. As such, the lower court’s adjudication of ownership in the ejectment case is merely provisional and would not bar or prejudice an action between the same parties involving title to the property. (Ampil vs. Manahan, G.R. No. 179550, October 11, 2012) Effect of failure of defendant to file answer to a complaint for unlawful detainer Section 6 of the Rule on Summary Procedure is clear that in case the defendant failed to file his answer, the court shall render judgment, either motu proprio or upon plaintiffs motion, based solely on the facts alleged in the complaint and limited to what is prayed for. The failure of the defendant to timely file his answer and to controvert the claim against him constitutes his acquiescence to every allegation stated in the complaint. Similarly, under Section 7, Rule 70 of the Rules of Court, if the defendant fails to answer the complaint within the period provided, the court has no authority to declare the defendant in default. Instead, the court, motu proprio or on motion of the plaintiff, shall render judgment as may be warranted by the facts alleged in the complaint and limited to what is prayed for. In Don Tino Realty and Development Corporation v. Florentino, the Court held that there was no provision for an entry of default under the Rules of Summary Procedure if the defendant failed to file his answer. In this case, Po failed to file his answer to the complaint despite proper service of summons. He also failed to provide a sufficient justification to excuse his lapses. Thus, as no answer was filed, judgment must be rendered by the court as may be warranted by the facts alleged in the complaint. ( Fairland Knitcraft Corporation vs. Po, G.R. No. 217694, January 27, 2016) The judgment rendered in an action for unlawful detainer shall be conclusive with respect to the possession only and shall in no wise bind the title or affect the ownership of the land or building. Such judgment would not bar an action between the same parties respecting title to the land or building. Section 18, Rule 70 of the Rules of Court provides that when the defendant raises the defense of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the issue of ownership shall be resolved only to determine the issue of possession. (Roberts vs. Papio, G.R. No. 166714, February 9, 2007)

Mandatory allegations for the municipal trial court to acquire jurisdiction over unlawful detainer To make a case for unlawful detainer, the complaint must allege that: (a) initially, the defendant lawfully possessed the property, either by contract or by plaintiff’s tolerance; (b) the plaintiff notified the defendant that his right of possession is terminated; (c) the defendant remained in possession and deprived plaintiff of its enjoyment; and (d) the plaintiff filed a complaint within one year from the last demand on defendant to vacate the property. A review of the complaint shows that: (a) the owners, Spouses Dumlao, agreed to allow the petitioners to continue operating the school on the disputed property; (b) in a demand letter dated February 12, 2004, the Spouses Dumlao told the petitioners to pay and/or vacate the property; (c) the respondents refused to vacate the property; and (d) the Spouses Dumlao filed the complaint (March 4, 2004) within a year from the last demand to vacate (February 12, 2004). Thus, although the complaint bears the caption "recovery of possession," its allegations contain the jurisdictional facts for an unlawful detainer case. Under RA 7691, an action for unlawful detainer is within the MTC’s exclusive jurisdiction regardless of the property’s assessed value. (Erorita vs. Dumlao, G.R. No. 195477, January 25, 2016)

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Judgment of the MTC in an unlawful detainer case, is there a trial de novo in the RTC? No. The RTC violated Rule 70, Sec. 18 by ordering the conduct of the relocation and verification survey "in aid of its appellate jurisdiction" and by hearing the testimony of the surveyor, for its doing so was tantamount to its holding of a trial de novo. The violation was accented by the fact that the RTC ultimately decided the appeal based on the survey and the surveyor’s testimony instead of the record of the proceedings had in the court of origin. N.B. Under Rule 70, Sec. 18, the RTC shall decide the appeal on the basis of the entire record of the proceedings had in the MTC and such memoranda as may be submitted by the parties. The case should be dismissed without prejudice to the filing of a non-summary action like accion reivindicatoria. The CA correctly held that a boundary dispute must be resolved in the context of accion reivindicatoria, not an ejectment case. The boundary dispute is not about possession, but encroachment, that is, whether the property claimed by the defendant formed part of the plaintiff’s property. A boundary dispute cannot be settled summarily under Rule 70 of the Rules of Court, the proceedings under which are limited to unlawful detainer and forcible entry. (Manalang vs. Bacani, G.R. No. 156995, January 12, 2015) In actions involving title to or possession of real property or any interest therein, there is a need to allege the assessed value of the real property subject of the action, or the interest therein, for purposes of determining which court (MeTC/MTC/MCTC or RTC) has jurisdiction over the action. However, it must be clarified that this requirement applies only if these courts are in the exercise of their original jurisdiction. In the present case, the RTC was exercising its appellate, not original, jurisdiction when it took cognizance of Arrienda's appeal and Section 22 of B.P. Blg. 129 does not provide any amount or value of the subject property which would limit the RTC's exercise of its appellate jurisdiction over cases decided by first level courts. Clearly then, in the instant case, contrary to the ruling of the CA, the assessed value of the disputed lot is immaterial for purposes of the RTC’s appellate jurisdiction. Indeed, all cases decided by the MTC are generally appealable to the RTC irrespective of the amount involved. Hence, the CA erred in nullifying the RTC decision for lack of jurisdiction. (Heirs of Arrienda vs. Kalaw, G.R. No. 204314, April 6, 2016)

ACCION PUBLICIANA AND REIVINDICATORIA Does the RTC have jurisdiction over all cases of recovery of possession regardless of the value of the property involved? NO. The doctrine that all cases of recovery of possession or accion publiciana lies with the regional trial courts regardless of the value of the property — no longer holds true. As things now stand, a distinction must be made between those properties the assessed value of which is below P20,000.00, if outside Metro Manila; and P50,000.00, if within (Quinagoran vs. Court of Appeals, G.R. No. 155179. August 24, 2007) Jurisdiction over accion publiciana and reivindicatoria depends on assessed value of the property Under Batas Pambansa Bilang 129, the jurisdiction of the RTC over actions involving title to or possession of real property is plenary. RA No. 7691, however, divested the RTC of a portion of its jurisdiction and granted the Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts the exclusive and original jurisdiction to hear actions where the assessed value of the property does not exceed Twenty Thousand Pesos (P20,000.00), or Fifty Thousand Pesos (P50,000.00), if the property is located in Metro Manila. In view of these amendments, jurisdiction over actions involving title to or possession of real property is now determined by its assessed value. The assessed value of real property is its fair market value multiplied by the assessment level. It is synonymous to taxable value.. (Cabling vs. Dangcalan, G.R. No. 187696, June 15, 2016; De Vera vs. Santiago, Jr., G.R. No. 179457, June 22, 2015, Third Division; Supapo vs. Sps. de Jesus, G.R. No. 198356, April 20, 2015, Second Division; Tumpag vs. Tumpag, G.R. No. 199133, September 29, 2014; BF Citiland Corporation vs. Marylin B. Otake, G.R. No. 173351, July 29, 2010, Second Division; Spouses Alcantara vs. Nido, G.R. No. 165133, April 19, 2010, Second Division; Bernardo vs.

- 40 Villegas, G.R. No. 183357, March 15, 2010, Second Division Geonzon Vda. de Barrera vs. Heirs of Vicente Legaspi, G. R. No. 174346, September 12, 2008, Second Division; Barangay Piapi vs. Talip, G.R. No. 138248, September 7, 2005; Hilario vs. Salvador, G.R. No. 160384, April 29, 2005; Laresma vs. Abellana, G.R. No. 140973, November 11, 2004; Atuel vs. Valdez, G.R. No. 139561, June 10, 2003; Ouano vs. PGTT Int'l. Investment Corporation, G.R. No. 134230, July 17, 2002; Aliabo vs. Carampatan, G.R. No. 128922, March 16, 2001) Cases which contradict Quinagoran vs. CA and related cases – RTC jurisdiction over accion publiciana and accion reivindicatoria

has exclusive

Accion publiciana is the plenary action to recover the right of possession which should be brought in the proper regional trial court when dispossession has lasted for more than one year. It is an ordinary civil proceeding to determine the better right of possession of realty independently of title. In other words, if at the time of the filing of the complaint, more than one year had elapsed since defendant had turned plaintiff out of possession or defendant’s possession had become illegal, the action will be, not one of forcible entry or illegal detainer, but an accion publiciana. (Erorita vs. Dumlao, G.R. No. 195477, January 25, 2016, Second Division; Norberte vs. Mejia, G.R. No. 182886, March 9, 2015, Third Division ; Suarez vs. Emboy, G.R. No. 187944, March 12, 2014, First Division; Jose vs. Alfuerto, G.R. No. 169380, November 26, 2012, Second Division; Republic vs. Sunvar Realty Development Corporation, G.R. No. 194880, June 20, 2012, Second Division; Delos Reyes vs. Odones, G.R. No. 178096, March 23, 2011, Second Division; Canlas vs. Tubil, G.R. No. 184285, September 25, 2009, Third Division; .Regis vs. Court of Appeals, G.R. No. 153914, July 31, 2007, Third Division, Bejar vs. Caluag, G.R. No. 171277, February 15, 2007, First Division; Valdez, Jr. vs. Court of Appeals, G.R. No. 132424, May 2, 2006, First Division)