Venue; Personal Actions (1997)

Posted on September 13, 2010 by Salin Lahi

X, a resident of Angeles City, borrowed P300,000.00 from A, a resident of Pasay City. In the loan agreement, the parties stipulated that “the parties agree to sue and be sued in the City of Manila.” a) In case of non-payment of the loan, can A file his complaint to collect the loan from X in Angeles City?

b)     Suppose the parties did not stipulate in the loan agreement as to the venue, where can A file his complaint against X?

c)     Suppose the parties stipulated in their loan agreement that “venue for all suits arising from this contract shall be the courts in Quezon City,” can A file his complaint against X in Pasay City?

SUGGESTED ANSWER:

(a) Yes, because the stipulation in the loan agreement that “the parties agree to sue and be sued in the City of Manila” does not make Manila the “exclusive venue thereof.” (Sec, 4 of Rule 4, as amended by Circular No. 13-95: Sec. 4 of new Rule 4) Hence, A can file his complaint in Angeles City where he resides, (Sec, 2 of Rule 4).

(b) If the parties did not stipulate on the venue, A can file his complaint either in Angeles City where he resides or in Pasay City where X resides, (Id).

(c) Yes, because the wording of the stipulation does not make Quezon City the exclusive venue.

(Philbanking v. Tensuan. 230 SCRA 413; Unimasters Conglomeration, Inc. v. CA. CR-119657, Feb. 7, 1997)

ALTERNATIVE ANSWER:

(c) No. If the parties stipulated that the venue “shall be in the courts in Quezon City”, A cannot file his complaint in Pasay City because the use of the word “shall” makes Quezon City the exclusive venue thereof. (Hoechst Philippines vs. Torres, 83 SCRA 297).

Posted in CIVIL PROCEDURE, Personal Actions, Venue | Tagged | Leave a comment

Venue; Improper Venue; Compulsory Counterclaim (1998)

Posted on September 13, 2010 by Salin Lahi

A, a resident of Lingayen, Pangasinan sued X, a resident of San Fernando La Union in the RTC (RTC) of Quezon City for the collection of a debt of P1 million. X did not file a motion to dismiss for improper venue but filed his answer raising therein improper venue as an affirmative defense. He also filed a counterclaim for P80,000 against A for attorney’s fees and expenses for litigation. X moved for a preliminary hearing on said affirmative defense. For his part, A filed a motion to dismiss the counterclaim for lack of jurisdiction.

1 Rule on the affirmative defense of improper venue. [3%]

2 Rule on the motion to dismiss the counterclaim on the ground of lack of jurisdiction over the subject matter. [2%]

SUGGESTED ANSWER:

1.   There is improper venue. The case for a sum of money, which was filed in Quezon City, is a personal action. It must be filed in the residence of either the plaintiff, which is in Pangasinan, or of the defendant, which is in San Fernando, La Union. (Sec. 2 of Rule 4) The fact that it was not raised in a motion to dismiss does not matter because the rule that if improper venue is not raised in a motion to dismiss it is deemed waived was removed from the 1997 Rules of Civil Procedure. The new Rules provide that if no motion to dismiss has been filed, any of the grounds for dismissal may be pleaded as an affirmative defense in the answer. (Sec. 6 of Rule 16.)

2.  The motion to dismiss on the ground of lack of jurisdiction over the subject matter should be denied. The counterclaim for attorney’s fees and expenses of litigation is a compulsory counterclaim because it necessarily arose out of and is connected with the complaint. In an original action before the RTC, the counterclaim may be considered compulsory regardless of the amount. (Sec. 7 of Rule 6)

Posted in CIVIL PROCEDURE, Compulsory Counterclaim, Improper Venue, Venue | Tagged | Leave a comment

Summons; Validity of Service; Effects (2006)

Posted on September 13, 2010 by Salin Lahi

Tina Guerrero filed with filed the Regional Trial Court of Binan, Laguna, a complaint for sum of money amounting to P1 Million against Carlos Corro. The complaint alleges, among others, that Carlos borrowed from Tina the said amount as evidenced by a promissory note signed by Carlos and his wife, jointly and severally. Carlos was served with summons which was received by Linda, his secretary. However, Carlos failed to file an answer to the complaint within the 15-day reglementary period. Hence, Tina filed with the court a motion to declare Carlos in default and to allow her to present evidence ex parte. Five days thereafter, Carlos filed his verified answer to the complaint, denying under oath the genuineness and due execution of the promissory note and contending that he has fully paid his loan with interest at 12% per annum.

1.     Was the summons validly served on Carlos? (2.5%)

ALTERNATIVE ANSWER:

The summons was not validly served on Carlos be-cause it was served on his secretary and the requirements for substituted service have not been followed, such as a showing that efforts have been exerted to serve the same on Carlos and such attempt has failed despite due diligence (Manotoc v. CA, G.R. No. 130974, August 16, 2006; AngPing v. CA, G.R. No. 126947, July 15, 1999).

ALTERNATIVE ANSWER:

Service of Summons on Carlos was validly served upon him if the Return will show that it was done through Substituted Service because the defendant can not be served personally within a reasonable time despite diligent efforts made to serve the summons personally. Linda, the secretary of defendant Carlos, must likewise be shown to be a competent person in charge of defendant’s office where summons was served (Sec. 7, Rule 14).

2.     If you were the judge, will you grant Tina’s motion to declare Carlos in default? (2.5%)

ALTERNATIVE ANSWER:

If I were the judge, I will not grant Tina’s motion to declare Carlos in default because summons was not properly served and anyway, a verified answer to the complaint had already been filed. Moreover, it is better to decide a case on the merits rather than on technicality.

ALTERNATIVE ANSWER:

Yes. If it was shown that summons was validly served, and that the motion to declare Carlos in default was duly furnished on Carlos, and after conducting a hearing on the same motion.

Posted in CIVIL PROCEDURE, Effect, Summons, Validity of Service | Tagged | Leave a comment

Summons; Substituted Service (2004)

Posted on September 13, 2010 by Salin Lahi

Summons was issued by the MM RTC and actually received on time by defendant from his wife at their residence. The sheriff earlier that day had delivered the summons to her at said residence because defendant was not home at the time. The sheriffs return or proof of service filed with the court in sum states that the summons, with attached copy of the complaint, was served on defendant at his residence thru his wife, a person of suitable age and discretion then residing therein. Defendant moved to dismiss on the ground that the court had no jurisdiction over his person as there was no valid service of summons on him because the sheriffs return or proof of service does not show that the sheriff first made a genuine attempt to serve the summons on defendant personally before serving it thru his wife. Is the motion to dismiss meritorious? What is the purpose of summons and by whom may it be served? Explain. (5%)

SUGGESTED ANSWER:

The motion to dismiss is not meritorious because the defendant actually received the summons on time from his wife. Service on the wife was sufficient. (Boticano v. Chu, 148 SCRA 541 [1987]). It is the duty of the court to look into the sufficiency of the service. The sheriffs negligence in not stating in his return that he first made a genuine effort to serve the summons on the defendant, should not prejudice the plaintiff. (Mapa v. Court of Appeals, 214 SCRA 417/1992). The purpose of the summons is to inform the defendant of the complaint filed against him and to enable the court to acquire jurisdiction over his person. It maybe served by the sheriff or his deputy or any person authorized by the court.

ALTERNATIVE ANSWER:

Yes. The motion to dismiss is meritorious. Substituted service cannot be effected unless the sheriffs return shows that he made a genuine attempt to effect personal service on the husband.

Posted in CIVIL PROCEDURE, Substituted Service, Summons | Tagged | Leave a comment

Summons (1999)

Posted on September 13, 2010 by Salin Lahi

a)     What is the effect of absence of summons on the judgment rendered in the case?  (2%)

b)     When additional defendant is impleaded in the action, is it necessary that summons be served upon him? Explain. (2%)

c)     Is summons required to be served upon a defendant who was substituted for the deceased? Explain. (2%)

d)     A sued XX Corporation (XXC), a corporation organized under Philippine laws, for specific performance when the latter failed to deliver T-shirts to the former as stipulated in their contract of sale.  Summons was served on the corporation’s cashier and director. Would you consider service of summons on either officer sufficient? Explain. (2%)

SUGGESTED ANSWER:

a)     The effect of the absence of summons on a judgment would make the judgment null and void because the court would not have jurisdiction over the person of the defendant, but if the defendant voluntarily appeared before the court, his appearance is equivalent to the service of summons. (Sec. 20, Rule 14)

b)     Yes. Summons must be served on an additional defendant impleaded in the action so that the court can acquire jurisdiction over him, unless he makes a voluntary appearance.

c)     No. A defendant who was substituted for the deceased need not be served with summons because it is the court which orders him as the legal representative of the deceased to appear and substitute the deceased. (Sec. 16 of Rule 3.)

d)     Summons on a domestic corporation through its cashier and director are not valid under the present rules. (Sec. 11, Rule 14) They have been removed from those who can be served with summons for a domestic corporation.  Cashier was substituted by treasurer. (Id.)

Posted in CIVIL PROCEDURE, Summons | Tagged | Leave a comment

Summons

Posted on September 13, 2010 by Salin Lahi

Seven years after the entry of judgment, the plaintiff filed an action for its revival. Can the defendant successfully oppose the revival of the judgment by contending that it is null and void because the RTC-Manila did not acquire jurisdiction over his person? Why? (3%)

SUGGESTED ANSWER:

The RTC-Manila should deny the motion because it is in violation of the rule that no judgment obligor shall be required to appear before a court, for the purpose of examination concerning his property and income, outside the province or city in which such obligor resides. In this case the judgment obligor resides in Bulacan. (Rule 39, sec.36).

Posted in CIVIL PROCEDURE, Summons | Leave a comment

Special Civil Actions; Mandamus (2006)

Posted on September 13, 2010 by Salin Lahi

In 1996, Congress passed Republic Act No. 8189, otherwise known as the Voter’s Registration Act of 1996, providing for computerization of elections. Pursuant thereto, the COMELEC approved the Voter’s Registration and Identification System (VRIS) Project. It issued invitations to pre-qualify and bid for the project. After the public bidding, Fotokina was declared the winning bidder with a bid of P6 billion and was issued a Notice of Award. But COMELEC Chairman Gener Go objected to the award on the ground that under the Appropriations Act, the budget for the COMELEC’s modernization is only P1 billion. He announced to the public that the VRIS project has been set aside. Two Commissioners sided with Chairman Go, but the majority voted to uphold the contract.

Meanwhile, Fotokina filed with the RTC a petition for mandamus compel the COMELEC to implement the contract. The Office of the Solicitor General (OSG), representing Chairman Go, opposed the petition on the ground that mandamus does not lie to enforce contractual obligations. During the proceedings, the majority Commissioners filed a manifestation that Chairman Go was not authorized by the COMELEC En Banc to oppose the petition.

Is a petition for mandamus an appropriate remedy to enforce contractual obligations? (5%)

SUGGESTED ANSWER:

No, the petition for mandamus is not an appropriate remedy because it is not available to enforce a contractual obligation. Mandamus is directed only to ministerial acts, directing or commanding a person to do a legal duty (COMELEC v. Quijano-Padilla, G.R. No. 151992, September 18, 2002; Sec. 3, Rule 65).

Posted in CIVIL PROCEDURE, Mandamus, Special Civil Action | Tagged | Leave a comment

Special Civil Action; Quo Warranto (2001)

Posted on September 13, 2010 by Salin Lahi

A group of businessmen formed an association in Cebu City calling itself Cars C. to distribute / sell cars in said city. It did not incorporate itself under the law nor did it have any government permit or license to conduct its business as such. The Solicitor General filed before a RTC in Manila a verified petition for quo warranto questioning and seeking to stop the operations of Cars Co. The latter filed a motion to dismiss the petition on the ground of improper venue claiming that its main office and operations are in Cebu City and not in Manila. Is the contention of Cars Co. correct? Why? (5%)

SUGGESTED ANSWER:

No. As expressly provided in the Rules, when the Solicitor General commences the action for quo warranto, it may be brought in a RTC in the City of Manila, as in this case, in the Court of Appeals or in the Supreme Court. (Sec. 7 of Rule 66)

Posted in CIVIL PROCEDURE, Quo Warranto, Special Civil Action | Tagged | Leave a comment

Special Civil Action; Petition for Certiorari (2002)

Posted on September 13, 2010 by Salin Lahi

The defendant was declared in default in the RTC for his failure to file an answer to a complaint for a sum of money. On the basis of the plaintiff’s ex parte presentation of evidence, judgment by default was rendered against the defendant. The default judgment was served on the defendant on October 1, 2001. On October 10, 2001, he files a verified motion to lift the order of default and to set aside the judgment. In his motion, the defendant alleged that, immediately upon receipt of the summon, he saw the plaintiff and confronted him with his receipt evidencing his payment and that the plaintiff assured him that he would instruct his lawyer to withdraw the complaint. The trial court denied the defendant’s motion because it was not accompanied by an affidavit of merit. The defendant filed a special civil action for certiorari under Rule 65 challenging the denial order.

A. Is certiorari under Rule 65 the proper remedy? Why? (2%)

B. Did the trial court abuse its discretion or act without or in excess of its jurisdiction in denying the defendant’s motion to lift the order of default judgment? Why? (3%)

SUGGESTED ANSWER:

A. The petition for certiorari under Rule 65 filed by the defendant is the proper remedy because appeal is not a plain, speedy and adequate remedy in the ordinary course of law. In appeal, the defendant in default can only question the decision in the light of the evidence of the plaintiff. The defendant cannot invoke the receipt to prove payment of his obligation to the plaintiff.

ALTERNATIVE ANSWER:

A. Under ordinary circumstances, the proper remedy of a party wrongly declared in default is either to appeal from the judgment by default or file a petition for relief from judgment. [Jao, Inc. v. Court of Appeals, 251 SCRA 391 (1995)

SUGGESTED ANSWER:

B. Yes, the trial court gravely abused its discretion or acted without or in excess of jurisdiction in denying the defendant’s motion because it was not accompanied by a separate affidavit of merit. In his verified motion to lift the order of default and to set aside the judgment, the defendant alleged that immediately upon the receipt of the summons, he saw the plaintiff and confronted him with his receipt showing payment and that the plaintiff assured him that he would instruct his lawyer to withdraw the complaint. Since the good defense of the defendant was already incorporated in the verified motion, there was not need for a separate affidavit of merit. [Capuz v. Court of Appeals, 233 SCRA 471 (1994); Mago v. Court of Appeals, 303 SCRA 600 (1999)].

Posted in CIVIL PROCEDURE, Petition for Certiorari, Special Civil Action | Tagged | Leave a comment

Special Civil Action; Foreclosure (2003)

Posted on September 13, 2010 by Salin Lahi

A borrowed from the Development Bank of the Philippines (DBP) the amount of P1 million secured by the titled land of his friend B who, however, did not assume personal liability for the loan. A defaulted and DBP filed an action for judicial foreclosure of the real estate mortgage impleading A and B as defendants. In due course, the court rendered judgment directing A to pay the outstanding account of P1.5 million (principal plus interest) to the bank. No appeal was taken by A on the Decision within the reglementary period. A failed to pay the judgment debt within the period specified in the decision. Consequently, the court ordered the foreclosure sale of the mortgaged land. In that foreclosure sale, the land was sold to the DBP for P1.2 million. The sale was subsequently confirmed by the court, and the confirmation of the sale was registered with the Registry of Deeds on 05 January 2002.

On 10 January 2003, the bank filed an ex-parte motion with the court for the issuance of a writ of possession to oust B from the land. It also filed a deficiency claim for P800,000.00 against A and B. the deficiency claim was opposed by A and B.

(a) Resolve the motion for the issuance of a writ of possession.

(b) Resolve the deficiency claim of the bank. 6%

SUGGESTED ANSWER:

(a) In judicial foreclosure by banks such as DBP, the mortgagor or debtor whose real property has been sold on foreclosure has the right to redeem the property sold within one year after the sale (or registration of the sale). However, the purchaser at the auction sale has the right to obtain a writ of possession after the finality of the order confirming the sale. (Sec. 3 of Rule 68; Sec. 47 of RA 8791. The General Banking Law of 2000). The motion for writ of possession, however, cannot be filed ex parte. There must be a notice of hearing.

(b) The deficiency claim of the bank may be enforced against the mortgage debtor A, but it cannot be enforced against B, the owner of the mortgaged property, who did not assume personal liability for the loan.

Posted in CIVIL PROCEDURE, Foreclosure, Special Civil Action | Tagged | Leave a comment