BATHAN NOTES 1

2018 Remedial Law Bar Examination

By: Judge Leo Larisma Bathan 2

“Nemo debet bis vexari et eadem causa” 3

MOTION TO DISMISS
Note:
1. FAILURE to invoke grounds provided under Section 1 of Rule 16, 1997 Rules of Civil Procedure in a
motion to dismiss or in the answer would result in its waiver, EXCEPT 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 (See Pacaña-Contreras vs. Rovila Water Supply,
G.R. No. 168979, December 2, 2013, JB).
2. The REMEDY available against a denial of a motion to dismiss attended by grave abuse of discretion is
petition for certiorari under Rule 65. 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 (Barrazona vs. RTC 61, Baguio City).
3. 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 (S1 R9).
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Section 1, Rule 16 of the 1997 Revised Rules of Civil Procedure, viz:
 THAT THE COURT HAS NO JURISDICTION OVER THE SUBJECT MATTER OF THE CLAIM. NOT
WAIVEABLE.

Remedies Available vs. Granting or Denying Order of Dismissal on the ground of lack of jurisdiction over
the subject matter:
If MTD is granted and the order is correct, the REMEDY is to re-file the complaint to the court of proper
jurisdiction; if the order of granting the MTD is incorrect, the REMEDY is certiorari Rule 65, because if the
Order is incorrect in granting the MTD, the act of issuing an incorrect Order is founded GAD amounting to
lack or excess of jurisdiction, or
If MTD is denied and the order is correct, the REMEDY is to file the Answer; if the order denying the
MTD is incorrect, the REMEDY is certiorari Rule 65, because if the Order is incorrect in denying the MTD,
the act of issuing an incorrect Order is founded GAD amounting to lack or excess of jurisdiction.

 IN DETERMINING WHAT WHICH COURT/FORUM HAS EOJ, ALWAYS REMEMBER THE FOLLOWING:

1. Trial court’s power to motu proprio or ex mere motu dismiss the case/complaint if it has no jurisdiction over the
subject matter.

1
Basic points for you to remember this year (2018) Bar Examination in Remedial Law. I wish you all GOOD LUCK and may
the Good LORD Bless your always. HOSANNA IN THE HIGHEST.
2
Presiding Judge, RTC, Branch 92, Quezon City; APJ, RTC Br. 108, Cabuyao City, Laguna; RTC 6, Tanauan City,
Batangas;
Judge Designate, RTC Branches 39 & 40 Calapan City, Or. Mindoro; Professor, San Sebastian College of Law, Manila;
University of Batangas (Main and Lipa City Campuses); MCLE Lecturer; VLC Bar Review Lecturer.
3
“The hardship on the individual that he should be vexed twice for the same cause.” (Cruz vs. CA, G.R. NO. 164797,
February 13, 2006). Do your best. Do not repeat the Bar Examination.
2. If the (trial) court has no jurisdiction over the subject matter the only power it has is to dismiss the case.

3. Decision rendered by the (trial) court acting without jurisdiction over the subject matter is null and void.

4. Judge BATHAN FORMULA on basic guidelines forum: MTC or RTC or CA, SA, CTA, SC; or quasi-judicial
bodies has EOJ over the case:

Rule No. 1. (a) Breach of contract as cause of action for Specific Performance  RTC.
(b) Breach of contract as cause of action for Damages  MTC or  RTC (Pajares vs.
Remarkable Laundry and Dry Cleaning, February 20, 2017 (JMCDC).

Rule No. 2. Action has something to do with O-P-I, realties’ A.V. is determinative of trial court’s jurisdiction
MTC or RTC.

 Assessed value is jurisdictional; primary intention of the plaintiff is controlling (Trayvilla vs. Sejas, 2016).
 Where the ultimate objective of the plaintiff is to obtain title (possession or interest) to real property, AV is
controlling (Huguete vs. Embudo, 2003).
 Action is captioned as one for specific performance and damages, but the relief sought was the conveyance or
transfer of real property, or ultimately, the execution of deeds of conveyance in their favor of the real properties
enumerated in the provisional memorandum of agreement, the case is actually a real action affecting as it did title to or
possession of real property. Consequently, the basis for determining the correct docket fees shall be the assessed
value of the property, or the estimated value thereof as alleged in the complaint. But since Mercedes Gochan failed to
allege in their complaint the value of the real properties, the High Court found that the RTC did not acquire jurisdiction
over the same for non-payment of the correct docket fees (Gochan vs. Gochan, 2001).

Rule No. 3. Action has something to do with O-P-I with prayer for damages, damages are mere incidental), A.V.
is determinative of trial court’s jurisdiction MTC or RTC.

Rule No. 4. Judicial Foreclosure of Mortgage is a real action, follow AV MTC or RTC (Roldan vs. Barrios,
G.R. No. 214803, April 23, 2018).

Rule No. 5. Action has something to do with O-P-I with alternative cause of action for damages, but the primary
purpose of the complaint has something to do with O-P-I, follow AV  MTC or  RTC.

Rule No. 6. Action has something to do with recovery of possession (realty), determine first whether the
recovery of possession is interdictal or publiciana. Interdictal MTC; Publiciana MTC or RTC, depending
upon property’s A.V.

Rule No. 7. In ejectment cases where the issue of possession is intimately intertwined with the issue of
ownership, MTC not divested of jurisdiction. Issue of ownership is material only to determine who has better
possession. Consider a complaint as one for unlawful detainer if the following elements are present in the
complaint:
Initially, the possession of the property by the defendant was by contract with or by tolerance of the
plaintiff.
Eventually, the possession became illegal upon the plaintiff’s notice to the defendant of the termination
of the latter’s right of possession.
Thereafter, the defendant remained in possession of the property and deprived the plaintiff of the
latter’s enjoyment.
Within one year from the making of the last demand on the defendant to vacate the property, the
plaintiff instituted the complaint for unlawful detainer.

Even where the defendant raises the question of ownership in his pleadings and the question of
possession cannot be resolved without deciding the issue of ownership, the first level courts have the
undoubted competence to resolve the issue of ownership albeit only to determine the issue of possession
(Wilmon Auto Supply Corp. vs. CA, 1992).
 In unlawful detainer, tolerance must be present right from the start of possession sought to
be recovered, to categorize a cause of action as one of unlawful detainer (Monteblanco vs. Hinigaran
Sugar Plantation, 1936).
 The rule in forcible entry cases, but not in those for unlawful detainer, is that a party who
can prove prior possession can recover such possession even against the owner himself. Regardless of the
actual condition of the title to the property and whatever may be the character of his prior possession, if he
has in his favor priority in time, he has the security that entitles him to remain on the property until he is
lawfully ejected by a person having a better right through an accion publiciana or accion reivindicatoria.
Corollarily, if prior possession may be ascertained in some other way, then the inferior court cannot dwell
upon or intrude into the issue of ownership (German Management & Services vs. CA, 1989).

Rule No. 8. Real action case is intertwined with an SP with or without prayer for damages, SP determines trial
court’s jurisdiction. Disregard the AV, because SP is an AIPE.

Rule No. 9. If the principal action cannot be estimated in terms of money - -AIPE RTC.
Rule No. 10. RTC, if declaratory relief action is governed by Section 1, paragraph 1 of Rule 63.

Rule No. 11. RTC or MTC depending on the AV, if declaratory relief action is governed by Section 1, paragraph
2 of Rule.
Malana vs. Tappa, G.R. NO. 181303, September 17, 2009 (JCN).
To determine which court has jurisdiction over the actions identified in the second paragraph of Section 1,
Rule 63 of the Rules of Court, said provision must be read together with those of the Judiciary
Reorganization Act of 1980, as amended.
Section 1, Rule 63 of the Rules of Court does not categorically require that an action to quiet title be filed
before the RTC. It repeatedly uses the word "may" - that an action for quieting of title "may be brought
under [the] Rule" on petitions for declaratory relief, and a person desiring to file a petition for declaratory
relief "may x x x bring an action in the appropriate Regional Trial Court." The use of the word "may" in a
statute denotes that the provision is merely permissive and indicates a mere possibility, an opportunity or
an option.
In contrast, the mandatory provision of the Judiciary Reorganization Act of 1980, as amended, uses the
word "shall" and explicitly requires the MTC to exercise exclusive original jurisdiction over all civil
actions which involve title to or possession of real property where the assessed value does not exceed
P20,000.00 (outside NCR)
In this case, MTC has EO jurisdiction.

 Salvador vs. Patricia, Inc., G.R. No. 195834, November 09, 2016, JLPB). “xxx the RTC had
jurisdiction over the cause of action for injunction because it was one in which the subject of the
litigation was incapable of pecuniary estimation. But the same was not true in the case of the cause of
action for the quieting of title, which had the nature of a real action — that is, an action that involves
the issue of ownership or possession of real property, or any interest in real property.”

However in Sabitsana vs. Muertegui, G.R. No. 181359, August 05, 2013 (JMCDC), said:
“The Regional Trial Court has jurisdiction over the suit for quieting of title.
On the question of jurisdiction, it is clear under the Rules that an action for quieting of title may be
instituted in the RTCs, regardless of the assessed value of the real property in dispute. Under Rule 63
of the Rules of Court, an action to quiet title to real property or remove clouds therefrom may be
brought in the appropriate RTC.
It must be remembered that the suit for quieting of title was prompted by petitioners’ August 24, 1998
letter-opposition to respondent’s application for registration. Thus, in order to prevent a cloud from
being cast upon his application for a title, respondent filed Civil Case No. B-1097 to obtain a
declaration of his rights. In this sense, the action is one for declaratory relief, which properly falls
within the jurisdiction of the RTC pursuant to Rule 63 of the Rules.”

Rule No. 12. If the claim is purely for sum of money, apply totality of the claims rule in all the causes of action:
MTC or RTC, depending upon the total.

Rule No. 13. HLURB, DARAB, BFAR (as the case may be) vs. MTC or RTC. If the resolution of the case
requires expertise, specialized skills, and knowledge of a particular government agency or agencies in resolving
an issue, apply the doctrine of primary jurisdiction.

Rule No. 14. Regular Court (RTC or MTC) vs. Labor Arbiter [Article 217, Labor Code]:
(a) not all disputes between an employer and his employee fall within the jurisdiction of the labor tribunals;
and
(b) a cause of action is based on a quasi-delict or tort, which has no reasonable causal connection with any
of the claims provided for in Article 217, jurisdiction over the action is with the regular courts. Therefore,
if it is clear and pure labor LA/NLRC.
If it is a claim for payment and post-employment issue: MTC or RTC, depending upon the amount.

Rule No. 15. RTC (regular court) vs. Family Court (RTC), on jurisdiction over issue on constitutionality of
provision of RA 9262. On family cases, RTC is a court of special jurisdiction (Garcia vs. Judge Drilon, G.R.
No. 179267, June 25, 2013).

Rule No. 16. FIRST LEVEL COURT vs. RTC, on sexual harassment (criminal nature) RA 7877, penalized by
imprisonment of not less than one (1) month nor more than six (6) months, or a fine of not less than Ten
thousand pesos (P10,000) nor more than Twenty thousand pesos (P20,000), or both such fine and
imprisonment at the discretion of the court.

Rule No. 17. RTC (commercial court) vs. First Level court, on copyright/trademark/infringement cases. R.A.
No. 8293 imprisonment from two (2) years to five (5) years and a fine ranging from Fifty thousand pesos
(P50,000.00) to Two hundred thousand pesos (P200,000.00), shall be imposed on any person who is found
guilty of committing any of the acts mentioned in Section 155 [Infringement], Section 168 [Unfair Competition]
 and Section 169.1 [False Designation of Origin and False Description or Representation]. Section 27 of RA 166
says lodged with the CFI (now RTC). R.A. No. 166 was not expressly repealed by R.A. No. 8293 (Samson vs.
Judge Daway & People, G.R. Nos. 160054-55, July 21, 2004).

Rule No. 18. RTC vs. First Level court on violation of OEC, criminal nature (Section 261) (except failure to vote
and failure to register as voter). Section 268 OEC – RTC shall have exclusive original jurisdiction to try and
decide any criminal action or proceedings for violation of the Code except those relating to the offense of failure
to register or failure to vote.

Rule No. 19. RTC vs. First Level Court on libel cases. Penalty imposable for libel under the RPC is prisión
correccional in its minimum period or a fine ranging from Twenty thousand pesos (₱20,000) to One hundred
thousand pesos (₱100,000) (as amended by RA 10951).
Article 360 of the RPC, as amended by RA 4363: “xxx The criminal action and civil action for damages in cases
of written defamations, xxx shall be filed simultaneously or separately with the court of first instance of
the province or city where the libelous article is printed and first published or where any of the offended parties
actually resides at the time of the commission of the offense: xxx”

Rule No. 20. RTC vs. First Level Courts, on libel cases under RA 10175 and other offenses punishable
thereunder. See Section 21 of the law.

Rule No. 21. Sandiganbayan vs. RTC on public officials and employees with SG 27 and up together with
civilians who conspired with the latter (if applicable) on graft and corrupt practices cases.

Rule No. 22. RTC vs. Sandiganbayan, on public officials and employees with SG 26 and below together with
civilians who conspired with the latter (if applicable) on graft and corrupt practices cases where the penalty
imposable is more than (6) years and one (1) day.

Rule No. 23. FIRST LEVEL courts vs. RTC vs. Sandiganbayan, on public officials and employees with SG 26
and below together with civilians who conspired with the latter (if applicable) on graft and corrupt practices
cases where the penalty imposable is (6) years and below.

Rule No. 24. RTC EOJ (criminal) where the information: (a) does not allege any damage to the government or
any bribery; or (b) alleges damage to the government or bribery arising from the same or closely related
transactions or acts in an amount not exceeding One million pesos (P1,000,000.00).

Rule No. 25. RTC vs. Sandiganbayan in all violations of RA 9165 regardless of SGs (De Lima vs. Judge
Guerrero).

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 THAT VENUE IS IMPROPERLY LAID. WAIVEABLE.

Remedies Available vs. Denying/Granting Order of Dismissal on the ground of improper venue:

 If the order of dismissal is correct, re-file the complaint to the court of proper venue.
If no doubt that venue is improperly laid and the TC DENIES the MTD based on that ground, the
remedy is Certiorari under Rule 65. Reason: tainted with grave abuse of discretion (GAD).
If no doubt that venue is improperly laid and the TC GRANTS the MTD based on that ground, the
remedy is to RE-FILE the complaint/case in the competent court of proper venue. Reason: no grave abuse
of discretion (No GAD)
I If no doubt that venue is properly laid and the TC GRANTS the MTD based on that ground, the
remedy is Certiorari under Rule 65. Reason: tainted with grave abuse of discretion (GAD).

NOTE: however, that if the trial court DENIES the motion despite that venue is improperly laid, the character of the
order (denial) is interlocutory, therefore, the remedy available to the aggrieved party is Certiorari under Rule 65, subject
of course to the usual requirement of MR.

 UNITED ALLOY PHILS. CORP. vs. UCPB, G.R. NO. 179257, NOVEMBER 23, 2015 (JMCDC)
CASE:
Complaint was filed arising on the Lease Property Agreement (LPA) containing a stipulation that Makati City is the
exclusive venue of the action arising thereon, but the complaint was filed in Cagayan de Oro (CDO) trial court. Upon
motion based solely on that ground, CDO trial court granted the motion and dismissed the complaint holding that venue
of action should have been in Makati City. Determine the character of the dismissal order.
Held:
The dismissal order is dismissal without prejudice, not characterized as final order. If the dismissal is without prejudice,
the remedy available to the aggrieved party is special civil action for Certiorari under Rule 65, not appeal. If the order of
dismissal is correct, which is characterized as without prejudice, it does not preclude the re-filing of the same action.
Procedurally, if the character of dismissal is without prejudice, meaning, no res judicata yet, thus, the order of dismissal
is without prejudice, therefore, not appealable. The rule says: where the judgment or final order is not appealable, the
aggrieved party may file an appropriate SCAC 65.

NOTE: in Unialloy, the order granting the MTD on the ground of improper venue is dismissal is without prejudice,
meaning no res judicata yet, thus, the order of dismissal is without prejudice, therefore, not appealable.

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THE RULE ON VENUE
 On real actions. — Actions affecting title to or possession of real property, or interest therein, shall be
commenced and tried in the proper court which has jurisdiction over the area wherein the real property
involved, or a portion thereof, is situated.

On forcible entry and detainer actions shall be commenced and tried in the municipal trial court of the
municipality or city wherein the real property involved, or a portion thereof, is situated.

On personal actions. — All other actions may be commenced and tried 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.

On actions against non-residents. — If any of the defendants does not reside and is not found in
the Philippines, and the action affects the personal status of the plaintiff, or any property of said defendant
located in the Philippines, the action may be commenced and tried in the court of the place where the
plaintiff resides, or where the property or any portion thereof is situated or found.

THE RULE ON VENUE ENUMERATED UNDER SECTIONS 1, 2 AND 3 OF RULE 4 (RULES OF COURT) SHALL
NOT APPLY:

 In those cases where a specific rule or law provides otherwise

In cases of voluntary insolvency petition.

Section 14 of the Insolvency Law specifies that the proper venue for a petition for voluntary insolvency is
the Regional Trial Court of the province or city where the insolvent debtor has resided in for six (6) months
before the filing of the petition. In this case, the issue of which court is the proper venue for respondent's
Petition for Voluntary Insolvency comes from the confusion on an insolvent corporation's residence.

 Pilipinas Shell Petroleum Corporation versus Royal Ferry Services, Inc., G.R. No. 188146, February 1,
2017
To determine the venue of an insolvency proceeding, the residence of a corporation should be the actual
place where its principal office has been located for six (6) months before the filing of the petition. If there is a
conflict between the place stated in the articles of incorporation and the physical location of the corporation's
main office, the actual place of business should control.
Requiring a corporation to go back to a place it has abandoned just to file a case is the very definition of
inconvenience. There is no reason why an insolvent corporation should be forced to exert whatever meager
resources it has to litigate in a city it has already left.
In any case, the creditors deal with the corporation's agents, officers, and employees in the actual place
of business. To compel a corporation to litigate in a city it has already abandoned would create more
confusion.
Moreover, the six (6)-month qualification of the law's requirement of residence shows intent to find the
most accurate location of the debtor's activities. If the address in a corporation's articles of incorporation is
proven to be no longer accurate, then legal fiction should give way to fact.
  WHERE THE PARTIES HAVE VALIDLY AGREED IN WRITING BEFORE THE FILING OF THE ACTION ON
THE EXCLUSIVE VENUE THEREOF

In Supena vs. Judge De La Rosa, A.M. No. RTJ-93-1031, January 28, 1997, it was held that in
extrajudicial foreclosure of mortgage under Act No. 3135, as amended, which is a special law
which deals particularly on extrajudicial foreclosure sales of real estate mortgages, the Rules of
Court on Venue of Actions under the Rules of Court is not applicable. EJDM is not an action.
For you to apply the exception on the rule on venue, consider the exclusivity character of the agreement as to
venue.
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 THAT THE PLEADING ASSERTING THE CLAIM STATES NO CAUSE OF ACTION. WAIVEABLE.
Notably, in the present rules, there was a deletion of the ground of “failure to state a cause of action”
from the list of those which may be waived if not invoked either in a motion to dismiss or in the answer”
(Pacaña-Contreras vs. Rovila Water Supply, G.R. No. 168979, December 2, 2013, JB).

TAKE NOTE THAT “PARTIES ARE NOT REAL-PARTIES-IN-INTEREST” FALL UNDER THE CATEGORY OF
FAILURE TO STATE A CAUSE OF ACTION.
Distinction: real party in interest vs. indispensable party.
Real party in interest is the party who stands to be benefited or injured by the judgment of the suit, or
the party entitled to the avails of the suit.
Indispensable party is a party in interest without whom no final determination can be had of an
action.
Necessary party, which is one who is not indispensable but who ought to be joined as a party if
complete relief is to be accorded as to those already parties, or for a complete determination or
settlement of the claim subject of the action.
If a suit is not brought in the name of or against the real party in interest, a motion to dismiss
may be filed on the ground that the complaint states no cause of action. However, the dismissal on this
ground entails an examination of whether the parties presently pleaded are interested in the outcome of
the litigation, and not whether all persons interested in such outcome are actually pleaded. The latter
query is relevant in discussions concerning indispensable and necessary parties, but not in discussions
concerning real parties in interest. Both indispensable and necessary parties are considered as real
parties in interest, since both classes of parties stand to be benefited or injured by the judgment of the
suit.” (Carandang vs. Heirs of de Guzman).
The rule on joinder of indispensable parties is founded on equity. And the spirit of the law is
reflected in S11, R3 of the 1997 Rules of Civil Procedure. It prohibits the dismissal of a suit on the
ground of non-joinder or misjoinder of parties and allows the amendment of the complaint at any stage
of the proceedings, through motion or on order of the court on its own initiative.
So, failure to implead indispensable party is curable by amendment as allowed by S5,
R10.
So, if the indispensable party sought to be impleaded is already dead and can no
longer be included in the complaint as indispensable parties because of his death during the
pendency of the case, the heirs can be impleaded, because their hereditary rights are to be
affected or might be affected by the case. Reason: upon his death, however, their ownership and
rights over their properties were transmitted to their heirs, including herein petitioners, pursuant to Article
774 in relation with Article 777 of the Civil Code (Pacaña-Contreras vs. Rovila Water Supply, G.R.
No. 168979, December 2, 2013, JB citing Orbeta, vs. Sendiong).

Take note that if failure to state a cause of action as a ground to dismiss the action is not timely availed of,
therefore waived, and may be cured by availing the provision of Section 5, Rule 10, thus:

“Section 5. Amendment to conform to or authorize presentation of evidence. — When issues not

raised by the pleadings are tried with the express or implied consent of the parties they shall be
treated in all respects as if they had been raised in the pleadings. Such amendment of the
pleadings as may be necessary to cause them to conform to the evidence and to raise these issues
may be made upon motion of any party at any time, even after judgment; but failure to amend does
not effect the result of the trial of these issues. If evidence is objected to at the trial on the ground
that it is not within the issues made by the pleadings, the court may allow the pleadings to be
 amended and shall do so with liberality if the presentation of the merits of the action and the ends of
substantial justice will be subserved thereby. The court may grant a continuance to enable the
amendment to be made.”

DISTINCTION BETWEEN THE DISMISSAL OF THE COMPLAINT FOR “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. Curable by amendment
(See S5, R10).
In lack of cause of action, the “questions of fact” are involved, therefore, courts hesitate to declare a
plaintiff as lacking in cause of action. Such declaration is postponed until the insufficiency of cause is
apparent from a preponderance of evidence. Usually, this is done only after the parties have been
given the opportunity to present all relevant evidence on such questions of fact. Even the preliminary
hearing on the propriety of lifting the restraining order was declared insufficient for purposes of
dismissing the complaint for lack of cause of action (Dabuco vs. CA). Curable by demurrer to
evidence (See Pacaña-Contreras vs. Rovila Water Supply, G.R. No. 168979, December 2, 2013,
JB).
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 THAT THE CLAIM OR DEMAND SET FORTH IN THE PLAINTIFF'S PLEADING HAS BEEN PAID, WAIVED,
ABANDONED, OR OTHERWISE EXTINGUISHED. NOT WAIVEABLE.
 THAT THE CLAIM ON WHICH THE ACTION IS FOUNDED IS ENFORCEABLE UNDER THE PROVISIONS OF
THE STATUTE OF FRAUDS. NOT WAIVEABLE.
 THAT THE CAUSE OF ACTION IS BARRED BY A PRIOR JUDGMENT OR BY THE STATUTE OF
LIMITATIONS. NOT WAIVEABLE.

NOTE: If the dismissal is grounded on RES JUDICATA, PRESCRIPTION, EXTINGUISHMENT of the claim or
demand, and UNENFORCEABILITY UNDER THE STATUTE OF FRAUDS, the dismissal is WITH PREJUDICE and
the remedy of the aggrieved party is to APPEAL the (final) order granting the motion to dismiss.

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 THAT THE COURT HAS NO JURISDICTION OVER THE PERSON OF THE DEFENDING PARTY.
WAIVEABLE.
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 THAT A CONDITION PRECEDENT FOR FILING THE CLAIM HAS NOT BEEN COMPLIED WITH.
WAIVEABLE.

KATARUNGANG PAMBARANGAY
PARTIES RESIDING IN THE SAME BARANGAY, KP REQUIRED
CASE:
Complainant and Respondent are both employees of the trial court holding office at Barangay. They are also
both residing in the same barangay. While inside the office, Respondent uttered abusive remarks to complainant made
in the heat of unrestrained anger and obfuscation.
Held:
The case is cognizable by the Katarungang Pambarangay, because the case is slight oral defamation and at
the same time the parties are both residing in the same barangay, but not on the basis that they are working on the
same office. Uttering defamatory words in the heat of anger, with some provocation on the part of the offended party
constitutes only a light felony thus mandatory barangay conciliation is required pursuant to Sections 408 and 409 of RA
7160, because the lupon of each barangay shall have authority to bring together the parties actually residing in the
same city or municipality for amicable settlement of all disputes (Villanueva vs. People, 2006; Agbayani vs. CA,
2012).

RESIDENCE OF THE REAL-PARTY-IN-INTEREST VS. RESIDENCE OF THE ATTORNEY-IN-FACT:

TAKE NOTE also that in barangay conciliation proceeding, the residence of the real-party-in-interest, the
plaintiff or defendant, as the case may be, and not the residence of the attorney-in-fact is material in any barangay
conciliation proceeding, because attorney-in-fact is not the real party-in-interest (Pascual vs. Pascual, 2005;
Abagatnan vs. Clarito, G.R. 211966); the requirement under Section 412 of the 1991 Local Government Code that a
case be referred for conciliation before the Lupon as a precondition to its filing in court applies only to those cases
where the real parties-in-interest actually reside in the same city or municipality (Banting vs. Spouses Maglapuz,
2006).

ESTATE AS PARTY, THE REAL PARTIES-IN-INTEREST NOT THE ADMINISTRATOR:

Take note that complaints by or against corporations, partnerships or other juridical entities may not be filed
with, received or acted upon by the barangay for conciliation. Estate, not the administrator is the real-party to the case,
thus barangay conciliation condition precedent is not necessary, because estate is a juridical entity that has a
personality, which is separate and distinct from that of administrator (4-5-17) (Uy vs. Fernandez, G.R. No. 200612,
April 5, 2017). A real party-in-interest is the party who stands to be benefited or injured by the judgment of the suit, or
the party entitled to the avails of the suit (Carandang vs. Heirs of De Guzman, 2006).
TAKE NOTE: that the non-recourse to the barangay conciliation process IS NOT a jurisdictional flaw to
warrant the dismissal of the case; on that ground the trial court cannot motu proprio dismiss the case, because the 1997
Rules of Civil Procedure provide and allow only three instances when the court may motu proprio dismiss the claim, viz:
when the pleadings or evidence on the record show that: (1) the court has no jurisdiction over the subject matter; (2)
there is another cause of action pending between the same parties for the same cause; or (3) where the action is barred
by a prior judgment or by a statute of limitations. The ground of non-referral to the Lupon is not being among those
mentioned. Therefore, trial court cannot dismiss a case on its own initiative (Aquino vs. Aure, 2008).

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 THAT THE PLAINTIFF HAS NO LEGAL CAPACITY TO SUE. WAIVEABLE.

 THAT THERE IS ANOTHER ACTION PENDING BETWEEN THE SAME PARTIES FOR THE SAME CAUSE.
NOT WAIVEABLE.

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APPEALLATE JURISDICITON, REVIEW AND CERTIORARI

CIVIL CASES:

EOJ R40 R42 R45

MTC RTC CA SC

EOJ R41 R45

RTC CA SC

EOJ R45
CA SC (e.g. Rule 47)

LABOR CASES:

From NLRC CA via Rule 65 (petition for certiorari), not to SC. “Therefore, all references in the amended Section 9 of
B.P. No. 129 to supposed appeals from the NLRC to the Supreme Court are interpreted to mean and refer to petitions
for certiorari under Rule 65. Consequently, all such petitions should henceforth be initially filed in the Court of Appeals in
strict observance of the doctrine in the hierarchy of courts as the appropriate forum for the relief desired.” (St. Martin
Funeral Homes vs. NLRC, G.R. No. 130866, September 16, 1998).

From CA SC via Rule 45 (petition for review on certiorari). Decision of the CA is a final order. Section 1, Rule 45
says: “A party desiring to appeal by certiorari from a judgment, final order or resolution of the CA, SB, CTA, the RTC or
other courts, whenever authorized by law, may file with the SC a verified petition for review on certiorari. xxx.”
(Malayang Manggagawa ng Stayfast Phils., Inc. vs. NLRC, G.R. No. 155306, August 28, 2013).

CRIMINAL CASES: (Bribery, Indirect and AGFA)

EOJ R40 R42 R45

MTC RTC CA SC
From the MTC (EOJ) (convicted) appealable to RTC, then reviewable by the SB via petition for review, then to SC via
Rule 45.

EOJ SBL R45

RTC SB SC
From the RTC (EOJ) (convicted) to SB on Appeal, then to SC on Review.

EOJ R65 R45

RTC SB SC (not CA)
On petition for certiorari (R65) against interlocutory orders issued by the RTC in criminal cases for violation of RA 3019
(or any other offenses) committed public officials (elected or appointed) with SG 26, in the exercise of their own original
jurisdiction or of their appellate jurisdiction so long as there is GAD. It includes petitions
for mandamus, prohibition, habeas corpus, injunction, and other ancillary writs and processes in aid of its appellate
jurisdiction (Magno vs. People, G.R. No. 171542, April 6, 2011).

EOJ of RTC if the information (a) does not allege any damage to the government or any bribery; or (b) alleges damage
to the government or bribery arising from the same or closely related transactions or acts in an amount not exceeding
One million pesos (P1,000,000.00) (convicted) (see Proviso in Section 4, RA 10660) to SB on Appeal, then to SC on
Review via Rule 45.

From Sandiganbayan (EOJ) (conviction) to SC for Review via Rule 45 (petition for review on certiorari).

NOTE: the criminal action and the corresponding civil action for the recovery of civil liability shall at all times be
simultaneously instituted with, and jointly determined in, the same proceeding by the Sandiganbayan or the appropriate
courts (MTC/RTC), the filing of the criminal action being deemed to necessarily carry with it the filing of the civil action,
and no right to reserve the filing of such civil action separately from the criminal action shall be recognized: Provided,
however, That where the civil action had heretofore been filed separately but judgment therein has not yet been
rendered, and the criminal case is hereafter filed with the Sandiganbayan or the appropriate court (MTC/RTC), said civil
action shall be transferred to the Sandiganbayan or the appropriate court (MTC/RTC), as the case may be, for
consolidation and joint determination with the criminal action, otherwise the separate civil action shall be deemed
abandoned.

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DISMISSAL OF ACTION
DISMISSAL WITHOUT PREJUDICE AND WITH PREJUDICE:

NOTE of the importance of knowing the difference between dismissal with and without prejudice is to answer the
QUESTIONS AS TO ITS EFFECT AND WHAT will be the remedy available to the aggrieved party – RES
JUDICATA, REFILE OR APPEAL.

(1) On filing of initiatory pleading, dismissal of the complaint for failure of the plaintiff to comply with the certification
of non-forum shopping. Dismissal is always without prejudice, unless otherwise provided in the order (See
S5 R7).
(2) Plaintiff fails to appear during the pre-trial conference, or plaintiff fails to file pre-trial brief, the dismissal is with
prejudice, unless otherwise ordered by the court) (See S5&6R18).
(3) When plaintiff fails to appear at the preliminary conference, dismissal of complaint is always without
prejudice, unless otherwise ordered by the court (See S7 in relation to S6 RSP).
(4) Plaintiff fails to appear at the trial in small claims cases, the dismissal of the claim is always without prejudice
(See S18, RSC).
(5) Repeated and unjustified failure of plaintiff to appear at the pre-trial conference, or to file pre-trial brief in
environmental cases, dismissal of the case is always without prejudice (See S7 R3 RPEC).
(6) Dismissal upon notice by plaintiff under Section 1 of Rule 17, 1997 Revised Rules of Civil Procedure, the
dismissal is without prejudice, except that a notice operates as an adjudication upon the merits when filed by a
plaintiff who was once dismissed in a competent court an action based on or including the same claim.

(7) Dismissal of action upon motion of plaintiff under Section 2, Rule 17, of 1997 Revised Rules of Civil Procedure
(without prejudice) (Section 2. Dismissal upon motion of plaintiff. — Except as provided in the preceding section, a
complaint shall not be dismissed at the plaintiff's instance save upon approval of the court and upon such terms and
conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him
of the plaintiffs motion for dismissal, the dismissal shall be limited to the complaint. The dismissal shall be without
prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless within fifteen (15) days
from notice of the motion he manifests his preference to have his counterclaim resolved in the same action. Unless
otherwise specified in the order, a dismissal under this paragraph shall be without prejudice. A class suit shall not be
dismissed or compromised without the approval of the court).
(8) Dismissal of action due fault of plaintiff under Section 3, Rule 17, of 1997 Revised Rules of Civil Procedure (without
prejudice) (Section 3. Dismissal due to fault of plaintiff. — If, for no justifiable cause, the plaintiff fails to appear on the
date of the presentation of his evidence in chief on the complaint, or to prosecute his action for an unreasonable length
of time, or to comply with these Rules or any order of the court, the complaint may be dismissed upon motion of the
defendant or upon the court's own motion, without prejudice to the right of the defendant to prosecute his counterclaim
in the same or in a separate action. This dismissal shall have the effect of an adjudication upon the merits, unless
otherwise declared by 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 (De Knecht vs. CA, 352
Phil. 833 cited in Cruz vs. CA, G.R. NO. 164797, February 13, 2006).

The ORDER dismissing Civil Case stated: “For failure of the plaintiffs as well as counsel to appear on several
settings despite due notices, precisely for the reception of plaintiffs’ evidence, upon motion of the defendant’s
counsel, this case is dismissed for failure to prosecute.” It is clear from the afore-mentioned order that said case
was dismissed, upon petitioners’ motion, for failure of private respondents and their counsel to attend several
scheduled hearings for the presentation of their evidence. Since the order did not contain a qualification
whether same is with or without prejudice, following Section 3, it is deemed to be with prejudice and shall have
the effect of an adjudication on the merits. A ruling based on a motion to dismiss, without any trial on the merits
or formal presentation of evidence, can still be a judgment on the merits (Luzon Development Bank vs.
Conquilla, G.R. No. 163338, 21 September 2005).

RES JUDICATA:

The doctrine of res judicata is a rule which pervades every well-regulated system of jurisprudence and is founded upon
two grounds embodied in various maxims of the common law, namely: (1) public policy and necessity, which makes it to
the interest of the State that there should be an end to litigation - republicae ut sit litium, and (2) the hardship on the
individual that he should be vexed twice for the same cause - nemo debet bis vexari et eadem causa. A contrary
doctrine would subject the public peace and quiet to the will and neglect of individuals and prefer the gratification of the
litigious disposition on the part of suitors to the preservation of the public tranquility and happiness (Cruz vs. CA, G.R.
NO. 164797, February 13, 2006).

There is res judicata when (1) there is a final judgment or order; (2) the court rendering it has jurisdiction over the
subject matter and the parties; (3) the judgment or order is on the merits; and (4) there is between the two cases identity
of parties, subject matter and causes of action (San Diego vs. Cardona, 70 Phil. 28).

TWO CONCEPTS OF RES JUDICATA:

The first is the so-called ‘bar by former judgment’ and the other one is ‘conclusiveness of judgment’.

There is bar by prior judgment when, as between the first case where the judgment was rendered, and the second case
that is sought to be barred, there is identity of parties, subject matter, and causes of action. Where there is identity of
parties and subject matter in the first and second cases, but no identity of causes of action, there is conclusiveness of
judgment. The first judgment is conclusive only as to those matters actually and directly controverted and determined,
not as to matters merely involved therein.

To easily remember, in bar by former judgment, the primordial consideration is the existence of two (2) cases; the
identicality of the parties, the subject-matter and the cause or causes of action; there is judgment on the merits in the
first case; the judgment on the merits in the first case is invokable as an absolute bar to the second case; the absolute
bar to the subsequent action also covers any other admissible matter which might have been offered for that purpose
and to all matters that could have been adjudged in that case, because the absolute bar to the subsequent action is not
only limited to every matter which was offered and received to sustain or defeat the claim or demand.
In conclusiveness of judgment, if the second action between the same parties is based upon a different claim or
demand, the judgment in the prior action operates as an estoppel and conclusive only as to those matters in issue or
points controverted, upon the determination of which the finding or judgment was rendered (illustrated in Bathan, 2017
Recitals in Civil Procedure).

In short, the first is the effect of a judgment as a bar to the prosecution of a second action upon the same claim,
demand or cause of action, while the second precludes the relitigation of a particular fact or issues in another action
between the same parties on a different claim or cause of action (Lopez vs. Reyes, 76 SCRA 179),

Case:
Because of gross abuse of official position and authority, breach of public trust and fiduciary obligations, brazen abuse
of right and power, unjust enrichment, and violation of the Constitution, Republic against Tuveras and Marcoses sought
in the Sandiganbayan to recover funds allegedly illegally acquired by the respondents seeking the cancellation and
reversion of TLA (Timber License Agreement) 356 to the State, P48 million as actual damages; and other damages.
Respondent filed demurrer to evidence. Sandiganbayan granted the demurrer. Was the trial court correct in granting the
demurrer to evidence?
Ruling:
NO.
Res judicata is an inappropriate ground for sustaining a demurrer to evidence, even as it stands as a proper ground for
a motion to dismiss under Rule 16 which can be ventilated before the beginning of the trial. It is a proper ground for a
motion to dismiss, but not via demurrer to evidence (Republic vs. Tuvera, G.R. NO. 148246, February 16, 2007).

LEGAL THEORIES DO NOT OPERATE TO CONSTITUTE A CAUSE OF ACTION:

New legal theories do not amount to a new cause of action so as to defeat the application of the principle of res judicata
(Perez vs. CA, G.R. No. 157616, July 22, 2005).

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NEXT POINT TO CONSIDER IS TO DETERMINE WHETHER APPEAL OR CERTIORARI IS THE REMEDY

AVAILABLE IS TO DETERMINE WHETHER THE ORDER OF DISMISSAL IS INTERLOCUTORY OR FINAL:
 Final Order - the case is terminated, thus trial court has nothing more to do with the case.
 Interlocutory Order - It is interlocutory in the sense that it does not finally dispose of the case, and, in
effect, directs the case to proceed until final adjudication by the court (Marmo, et al. vs. Anacay, G.R. No.
182585, November 27, 2009).
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POST JUDGMENT REMEDIES:

 MOTION FOR RECONSIDERATION
 MOTION FOR NEW TRIAL
 THIRD PARTY CLAIM
 REVIVAL OF JUDGMENT
 EXECUTION OF JUDGMENT
 APPEAL
 PETITION FOR RELIEF FROM JUDGMENT
 ANNULMENT OF JUDGMENT
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MOTION FOR RECONSIDERATION: take note of the two-fold nature of and MR: interlocutory and final.

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MOTION FOR NEW TRIAL:
 New trial is a remedy that seeks to ‘temper the severity of a judgment or prevent the failure of justice.’
 The Rules allows the courts to grant a new trial when there are errors of law or irregularities prejudicial to
the substantial rights of the accused committed during the trial, or when there exists newly discovered
evidence (Ybiernas vs. Tanco-Gabaldon, 2011).

Whether to grant is discretionary.

If newly discovered evidence, the ff is a must:

(1) that the evidence was discovered after trial;

(2) that such evidence could not have been discovered and produced at the trial even with the exercise of
reasonable diligence;
(3) that it is material, not merely cumulative, corroborative, or impeaching; and
(4) that the evidence is of such weight that it would probably change the judgment if admitted.

 Must not only act in a timely fashion in gathering evidence in support of the motion; he must act reasonably and in
good faith as well (Custodio vs. Sandiganbayan).
 Ignorance, inexperience or incompetence of counsel do not qualify as a ground for new trial. It binds the client.

Remedy of adverse party if motion for new trial is granted by the trial court:
If a motion for new trial is granted by the trial court the remedy of the adverse party if the act of granting the motion is
believed to be tainted with grave abuse of discretion is to file a petition for certiorari under Rule 65 of the 1997 Revised
Rules of Civil Procedure, because: first, this is authorized by Section 1, paragraph 2 (a) of Rule 41 of the same Rules of
Procedure says that no appeal may be taken from an order denying a motion for new trial or reconsideration; second,
this is because an order granting a motion for new trial is interlocutory nature.

Remedy of the aggrieved party if motion for new trial is denied by the trial court
 The remedy available is not petition for certiorari under Rule 65, but appeal under Rule 41 of the 1997 Revised
Rules of Civil Procedure, because:
First, Section 9 of Rule 37 of the 1997 Revised Rules of Civil Procedure is very clear on the matter that an order
denying a motion for new trial is not appealable (the order itself denying a motion for new trial is not appealable), the
remedy being an appeal from the judgment or final order;
Second, an order denying a motion for new trial is no longer an interlocutory character;
Third, certiorari is only available if there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course
of law (See Rule 65). Appeal is available.
Lastly, it is a final order, because it decisively puts to a close, or disposes of a case or a disputed issue leaving nothing
else to be done by the court in respect thereto (Santo Tomas University Hospital vs. Surla, 1998).

 Take note of Uy vs. First Metro Integrated Steel Corp, 2006). The ruling as to remedy is different. Why? In
this case, it was held that if a motion for new trial is denied, the aggrieved party may resort to the filing of a petition for
certiorari under Rule 65 of the 1997 Revised Rules of Civil Procedure from the denial of the motion for new trial.
Certiorari was allowed by the High Court because the denial of the motion for new trial is not on the substance of the
motion but on ground of technicality. In that case the trial court denied the motion for new trial because the same was
filed out of time, and was found out by the High Court that the same was filed within the reglementary period. According
to the High Court, citing Section 1, Rule 41, that certiorari under Rule 65 is applicable because no appeal may be
taken from an order denying a motion for new trial or reconsideration.

 Affidavit of merit is required in filing a motion for new trial if founded on fraud, accident, mistake or excusable
negligence must be accompanied by affidavits of merits, i.e., affidavits showing the facts (not mere conclusions or
opinions).
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PETITION FOR RELIEF FROM JUDGMENT (R38):

On FAME. F. Fraud-extrinsic; M. Mistake of fact not law.

An exception to the public policy of immutability of final judgments (Madarang vs. Morales, 2014). Premised on equity;
an act of grace and not regarded with favor, and granted only in exceptional cases (Torno vs. IAC, 1988,), especially to
any person against whom a decision or order is entered into through fraud, accident, mistake or excusable negligence
(Somoso vs. CA, 1989).

If a party has another adequate remedy available to him, which was either a motion for new trial or appeal from adverse
decisions of the lower court, and he was not prevented by fraud, accident, mistake or excusable negligence from filing
such motion or taking the appeal he cannot avail himself of the relief provided in Rule 38 (Somoso vs. CA) he cannot
avail himself of this petition.

Period to file: within sixty (60) days after the petitioner learns of the judgment, final order, or other proceeding to be set
aside and not more than six (6) months after such judgment or final order has been entered or such proceeding has
been taken.
Only applies when the one deprived of his right is a party to the case. If the movant is not a party or never been a party
to the case or even summoned to appear in case the remedy of petition for relief from judgment under Rule 38 of the
Rules of Court is not proper. The word used is “against a party” (Lagula vs. Casimiro, 98 Phil. 102).

If denied, petition for certiorari under Rule 65 may be filed. MR is required.

If granted, wait for the judgment, and if the judgment is not favorable, then file a notice of appeal. This is because an
interlocutory order generally cannot be appealed separately from the judgment. It is only after a judgment has been
rendered in the case that the ground for the appeal of the interlocutory order may be included in the appeal of the
judgment itself (Silverio, Jr. vs. CA, 2009).
But if the order granting the petition for relief is believed to be tainted with graved abuse of discretion,R65.

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ANNULMENT OF JUDGMENT (R47):

A recourse equitable in character and allowed only in exceptional cases where the ordinary remedies of new trial,
appeal, petition for relief or other appropriate remedies are no longer available through no fault of petitioner.
This remedy may not be invoked:

(1) where the party has availed himself of the remedy of new trial, appeal, petition for relief or other appropriate remedy
and lost therefrom, or
(2) where he has failed to avail himself of those remedies through his own fault or negligence (Macalalag vs.
Ombudsman, 2004).
(3) to serve as a substitute for the lost remedy of an appeal (Antonino vs. RD of Makati City, 2012).
Take note also: grave abuse of discretion is not a ground to annul a final and executory judgment (See Antonino vs.
Registry of Deeds of Makati City).

Introduction of false affidavit purely intrinsic:

The use of a false affidavit of loss is intrinsic because it is similar to the use of it during trial of forged instruments or
perjured testimony. It does not constitute extrinsic fraud to warrant the invalidation of a final judgment (Demetriou vs.
CA, 1994). The use of a forged instrument constituted only intrinsic fraud for while perhaps it prevented a fair and just
determination of a case, the use of such instrument or testimony did not prevent the adverse party from presenting his
case fully and fairly (Palanca vs. Republic, 24 SCRA 819).

Lack of jurisdiction as a ground for annulment:

Lack of jurisdiction as a ground for annulment of judgment refers to either lack of jurisdiction over the person of the
defending party or over the subject matter of the claim (Paulino vs. CA, 2014).

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THIRD PARTY CLAIM, WHEN AND HOW TO AVAIL?

“Third Party Claim” or “Tercera”.

When the sheriff seizes property of a third person in which the judgment debtor holds no right or interest, the
supervisory power of the court which has authorized execution may be invoked by the third person. 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. If that is the case, the court’s duty is limited to
determine whether the sheriff has acted rightly or wrongly in the performance of his duties in the execution of judgment,
more specifically, if the sheriff has indeed taken hold of the 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; it can treat that matter
only in so far as may be necessary to decide if the sheriff has acted correctly or not (Quebral vs. Garduno).
The court can require the sheriff to restore the property to the claimant’s possession if warranted by the evidence; if
claimant’s proofs do not however persuade the court his title or right of possession thereof, his claim will be denied
(Ong vs. Tating, 149 SCRA 265).
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EXECUTION OF JUDGMENT:
 Once a judgment attains finality, it becomes immutable and unalterable. It may not be changed, altered or modified
in any way even if the modification were for the purpose of correcting an erroneous conclusion of fact or law. This is
referred to as the “doctrine of finality of judgments,” and this doctrine applies even to the highest court of the land
(Dapar vs. Biascan, 482 Phil. 385).
 However, final judgments can still be altered or modified. These are the exceptions:
EXCEPTIONS:
(1) the correction of clerical errors, the so-called nunc pro tunc entries which cause no prejudice to any party;
(2) void judgments;
(3) and whenever circumstances transpire after the finality of the decision which render its execution unjust and
inequitable (Heirs of Maura So vs. Obliosca, January 28, 2008).

 Final and executory judgments are enforced by a writ of execution not by mandamus. Execution is the fruit and end
4
of the suit and is very aptly called the life of the law. It is the process which carries into effect a decree or judgment.
Execution of a judgment can be issued only against a party to the action and not against one who did not have his day
in court (St. Dominic Corporation vs. IAC, No. L-70623, June 30, 1987).

Compliance with the rules on motion not necessary:

A motion for issuance of a writ of execution is not strictly covered by the rigid requirement of the rules on notice and
hearing of motions. This can be acted upon by the court ex parte without causing prejudice to the right of other party
(Anama vs. CA, January 25, 2012).

 Take NOTE of the SUPERVENING EVENTS AS GROUNDS FOR MODIFICATION OR ALTERATION OF A

FINAL JUDGMENT
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REVIVAL OF JUDGMENT (R39):

 An action for revival of judgment is no more than a procedural means of securing the execution of a previous
judgment which has become dormant after the passage of five years without it being executed upon motion of the
prevailing party. It is not intended to re-open any issue affecting the merits of the judgment debtor’s case nor the
propriety or correctness of the first judgment (Panotes, vs. City Townhouse Development Corporation, 2007).
It is premised on the assumption that the decision to be revived, either by motion or by independent action, is
already final and executory (Saligumba vs. Palanog, 2008).
 A final and executory judgment or order may be executed on motion within five (5) years from the date of its
entry. After the lapse of such time, and before it is barred by the statute of limitations, a judgment may be enforced
by action. The revived judgment may also be enforced by motion within five (5) years from the date of its entry and
thereafter by action before it is barred by the statute of limitations (S6, R39, [Execution by motion or by
independent action]). The purpose of the law in prescribing time limitations for enforcing judgment by action is
precisely to prevent the winning parties from sleeping on their rights (Macias vs. Lim, 2004).
 A new and independent action, different and distinct from either the recovery of property case or the
reconstitution case, wherein the cause of action is the decision itself and not the merits of the action upon which
the judgment sought to be enforced is rendered (Juco vs. Heirs of Tomas Siy Chung Fu, 2005). Action to revive
is 10 years (Article 1144(3) provides that an action upon a judgment “must be brought within 10 years from the
time the right of action accrues.”).
 If the revival of judgment action is a personal one (accion in personam), the venue of the action is in the
residence of the plaintiff, or at the latter’s option, residence of the defendant, and if the revival of judgment action
involves a real action, the venue of the action is in the place where the property subject of the revival action is
situated (Infante vs, Aran Builders, Inc., 2007).

 Judgment does not attain finality when record is destroyed during pendency of motion for reconsideration. It has the
effect of suspending the statutory period after which an order, decision, or judgment, in connection with which said
motion was filed, becomes final. The motion for reconsideration prevents the decision from attaining finality. Cannot
therefore be a proper subject of an action for revival of judgment (Juco vs. Heirs of Tomas Siy Chung Fu, 2005).

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APPEAL (41):

4
Ipekdjian Merchandising Co. vs. Court of Tax Appeals, 8 SCRA 59 cited in PAL, Inc. vs. CA, G.R. No. L-49188, January 30,
1990.
When appeal is not permitted:
No appeal may be taken from:

(a) An order denying a motion for new trial or reconsideration;

(b) An order denying a petition for relief or any similar motion seeking relief from judgment;
(c) An interlocutory order;
(d) An order disallowing or dismissing an appeal;
(e) An order denying a motion to set aside a judgment by consent, confession or compromise on the ground of fraud,
mistake or duress, or any other ground vitiating consent;
(f) An order of execution;
(g) A judgment or final order for or against one or more of several parties or in separate claims, counterclaims, cross-
claims and third-party complaints, while the main case is pending, unless the court allows an appeal therefrom; and
(h) An order dismissing an action without prejudice.
In all the above instances where the judgment or final order is not appealable, the aggrieved party may file an
appropriate special civil action under Rule 65 (Paragraph 2, S1, R41).
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When is issue on prescription considered question of fact, and when considered question of law?
Issue on prescription may either be a question of law or fact; it is a question of fact when the doubt or difference
arises as to the truth or falsity of an allegation of fact; it is a question of law when there is doubt or controversy as
to what the law is on a given state of facts. The test of whether a question is one of law or fact is not the
appellation given to the question by the party raising the issue; the test is whether the appellate court can
determine the issue raised without reviewing or evaluating the evidence. Prescription, evidently, is a question of
fact where there is a need to determine the veracity of factual matters such as the date when the period to bring
the action commenced to run (Crisostomo vs. Garcia, 2006).

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MODES OF APPEAL:
(a) Ordinary appeal.—The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the
exercise of its original jurisdiction shall be taken by filing a notice of appeal with the court which rendered the
judgment or final order appealed from and serving a copy thereof upon the adverse party. No record on appeal
shall be required except in special proceedings and other cases of multiple or separate appeals where the law or
these Rules so require. In such cases, the record on appeal shall be filed and served in like manner.
(b) Petition for review.—The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the
exercise of its appellate jurisdiction shall be by petition for review in accordance with Rule 42.
(c) Appeal by certiorari.—In all cases where only questions of law are raised or involved, the appeal shall be to
the Supreme Court by petition for review on certiorari in accordance with Rule 45.

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DISTINCTIONS BETWEEN A PETITION FOR REVIEW (Rule 45) AS A MODE OF APPEAL AND A SPECIAL CIVIL
ACTION FOR CERTIORARI (Rule 65):

a. In appeal by certiorari, the petition is based on questions of law which the appellant desires the appellate court to
resolve. In certiorari as an original action, the petition raises the issue as to whether the lower court acted without or in
excess of jurisdiction or with grave abuse of discretion.

b. Certiorari, as a mode of appeal, involves the review of the judgment, award or final order on the merits. The original
action for certiorari may be directed against an interlocutory order of the court prior to appeal from the judgment or
where there is no appeal or any other plain, speedy or adequate remedy.

c. Appeal by certiorari must be made within the reglementary period for appeal. An original action for certiorari may be
filed not later than sixty (60) days from notice of the judgment, order or resolution sought to be assailed.

d. Appeal by certiorari stays the judgment, award or order appealed from. An original action for certiorari, unless a writ
of preliminary injunction or a temporary restraining order shall have been issued, does not stay the challenged
proceeding.
e. In appeal by certiorari, the petitioner and respondent are the original parties to the action, and the lower court or
quasi-judicial agency is not to be impleaded. In certiorari as an original action, the parties are the aggrieved, party
against the lower court or quasi-judicial agency and the prevailing parties, who thereby respectively become the
petitioner and respondents.

f. In certiorari for purposes of appeal, the prior filing of a motion for reconsideration is not required (Sec. 1, Rule 45);
while in certiorari as an original action, a motion for reconsideration is a condition precedent (Villa-Rey Transit vs. Bello,
L-18957, April 23, 1963), subject to certain exceptions.
g. In appeal by certiorari, the appellate court is in the exercise of its appellate jurisdiction and power of review, while in
certiorari as an original action, the higher court exercises original jurisdiction under its power of control and supervision
over the proceedings of lower courts (Paa vs. CA, G.R. No. 126560, December 04, 1997).

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General Rule: only questions of law can be raised in a petition for review on certiorari (Rule 45). EXCEPTIONS:

(1) when the findings are grounded entirely on speculations, surmises, or conjectures;
(2) when the inference made is manifestly mistaken, absurd, or impossible;
(3) when there is a grave abuse of discretion;
(4) when the judgment is based on misappreciation of facts;
(5) when the findings of fact are conflicting;
(6) when in making its findings, the same are contrary to the admissions of both appellant and appellee;
(7) when the findings are contrary to those of the trial court;
(8) when the findings are conclusions without citation of specific evidence on which they are based;
(9) when the facts set forth in the petition as well as in the petitioner’s main and reply briefs are not disputed by the
respondent; and
(10) when the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on
record (Uy vs. Villanueva, G.R. No. 157851, June 29, 2007).

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DISTINCTIONS BETWEEN CIVIL ACTION FOR CERTIORARI (Rule 65) VERSUS ORDINARY APPEAL (Rule 41):

As to the Purpose. Certiorari is a remedy designed for the correction of errors of jurisdiction, not errors of judgment.

As to the Manner of Filing. Over an appeal, the CA exercises its appellate jurisdiction and power of review. Over a
certiorari, the higher court uses its original jurisdiction in accordance with its power of control and supervision over the
proceedings of lower courts. An appeal is thus a continuation of the original suit, while a petition for certiorari is an
original and independent action that was not part of the trial that had resulted in the rendition of the judgment or order
complained of. The parties to an appeal are the original parties to the action. In contrast, the parties to a petition for
certiorari are the aggrieved party (who thereby becomes the petitioner) against the lower court or quasi-judicial agency,
and the prevailing parties (the public and the private respondents, respectively).

As to the Period of Filing. Ordinary appeals should be filed within fifteen (15) days from the notice of judgment or final
order appealed from. Where a record on appeal is required, the appellant must file a notice of appeal and a record on
appeal within thirty (30) days from the said notice of judgment or final order. A petition for review should be filed and
served within fifteen (15) days from the notice of denial of the decision, or of the petitioner’s timely filed motion for new
trial or motion for reconsideration. In an appeal by certiorari, the petition should be filed also within fifteen days from the
notice of judgment or final order, or of the denial of the petitioner’s motion for new trial or motion for reconsideration.
On the other hand, a petition for certiorari should be filed not later than sixty (60) days from the notice of judgment,
order, or resolution. If a motion for new trial or motion for reconsideration was timely filed, the period shall be counted
from the denial of the motion.

As to the Need for a Motion for Reconsideration. A motion for reconsideration is generally required prior to the filing
of a petition for certiorari, in order to afford the tribunal an opportunity to correct the alleged errors. Note also that this
motion is a plain and adequate remedy expressly available under the law. Such motion is not required before appealing
a judgment or final order (Tible & Tible Company, Inc. vs. Royal Savings and Loan Association, G.R. No. 155806,
April 8, 2008 cited in Bathan, 2017 Recitals in Civil Procedure).

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FRESH PERIOD RULE APPLICABLE TO CRIMINAL CASES:

“NEYPES” FRESH PERIOD DOES NOT APPLY TO APPEALS UNDER RULES 42, 43 AND 45:
ONLY APPLIES TO APPEALS UNDER RULES 40 AND 41:
(Rodriguez vs. People, G.R. No. 192799, October 24, 2012).

This is applicable in civil and in criminal cases.

Neypes elucidates that the “fresh period rule” applies to appeals under Rule 40 (appeals from the Municipal Trial Courts
to the RTC) and Rule 41 (appeals from the RTCs to the CA or this Court); Rule 42 (appeals from the RTCs to the CA);
Rule 43 (appeals from quasi-judicial agencies to the CA); and Rule 45 (appeals by certiorari to this Court).
A scrutiny of the said rules, however, reveals that the “fresh period rule” enunciated in Neypes need NOT apply to Rules
42, 43 and 45 as there is no interruption in the 15- day reglementary period to appeal. It is explicit in Rules 42, 43 and
45 that the appellant or petitioner is accorded a fresh period of 15 days from the notice of the decision, award,
judgment, final order or resolution or of the denial of petitioner’s motion for new trial or reconsideration filed, to wit:
Rule 42 (appeals from the RTCs to the CA)
The petition shall be filed and served within 15 days from notice of the decision sought to be reviewed or of the denial
of petitioner’s motion for new trial or reconsideration filed in due time after judgment.
Rule 43 (appeals from quasi-judicial agencies to the CA)
The appeal shall be taken within 15 days from notice of the award, judgment, final order or resolution, or from the date
of its last publication, if publication is required by law for its effectivity, or of the denial of petitioner’s motion for new trial
or reconsideration duly filed in accordance with the governing law of the court or agency a quo.
Rule 45 (appeals by certiorari to SC).
The petition shall be filed within 15 days from notice of the judgment or final order or resolution appealed from, or of the
denial of the petitioner’s motion for new trial.

IS NEYPES “FRESH PERIOD RULE” ALSO APPLIES TO ADMINISTRATIVE CASES?

It depends.
In Panolino vs. Tajala, G.R. No. 183616, June 29, 2010, it involved DENR case.
It was held that if the motion for reconsideration is granted and the decision is reversed by the administrative agency or
body, fresh period rule is applicable/available.
The adverse party has a fresh 15-day period to perfect his appeal.
However, if the motion for reconsideration is denied, the movant shall perfect his appeal during the remainder of the
period of appeal, reckoned from receipt of the resolution of denial.
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REMEDIES OF DEFENDANT DECLARED IN DEFAULT:

(1) a motion to set aside the order of default under Section 3(b), Rule 9 of the Rules of Court, if the default was
discovered before judgment could be rendered;
(2) a motion for new trial under Section 1(a) of Rule 37, if the default was discovered after judgment but while
appeal is still available;
(3) a petition for relief under Rule 38, if judgment has become final and executory;
(4) an appeal from the judgment under Section 1, Rule 41, even if no petition to set aside the order of default has been
resorted to (Lina vs. CA, 135 SCRA 637 cited in Indiana Aerospace University vs. CHED, G.R. No. 139371, April 4,
2001);
(5) A petition for certiorari may also be filed if the trial court declared the defendant in default with grave abuse of
discretion (Lui Enterprises vs. Zuellig Pharma Corporation, et al., G.R. No. 193494, March 07, 2014 citing Sps.
Delos Santos vs. Judge Carpio, 533 Phil. 42; Acance vs. CA, 493 Phil. 676; Indiana Aerospace University vs.
CHeD, supra).
(6) a remedy of annulment of judgment under Rule 47 is also available to defendant. This is true and possible when for
example the case is cognizable by the second level court but filed and decided by the first level court. Therefore,
annulment of judgment is available on ground of lack of jurisdiction so long as the same should be filed within the
prescriptive period.
(7) certiorari 65, if denial of the motion to lift is tainted with grave abuse of discretion. Reason, the RC provides and
allows the remedy of lifting.

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