2019- Remedial-LAW-BAR-Q A PDF

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2019 REMEDIAL LAW BAR EXAMINATIONSILender --- ABC Homeowners Association, Inc. sued Mr. X before the Regional Trial Court (RTC) forcollection of unpaid association dues. Mr. X filed a motion to dismiss solely on the ground of lack of jurisdiction, asserting that the Housing and Land Use Regulatory B...

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2019 REMEDIAL LAW BAR EXAMINATIONS I

Lender --- ABC Homeowners Association, Inc. sued Mr. X before the Regional Trial Court (RTC) for collection of unpaid association dues. Mr. X filed a motion to dismiss solely on the ground of lack of jurisdiction, asserting that the Housing and Land Use Regulatory Board has exclusive jurisdiction over disputes among homeowners and their associations. The RTC denied Mr. X's motion, maintaining that it has jurisdiction over the case. This prompted Mr. X to file a petition for certiorari under Rule 65 of the Rules of Court before the Supreme Court, alleging grave abuse of discretion on the part of the RTC in denying his motion to dismiss. a) Is Mr. X's chosen remedy of certiorari and direct recourse to the Supreme Court proper? Explain. (2.5%) b) Assuming that Mr. X's motion was instead granted by the RTC, what is the proper remedy of ABC Homeowners Association, Inc. to challenge the RTC ruling? Explain. (2.5%) Suggested Answers: Jurisdiction: Doctrine of Hierarchy of Courts a) No, Mr. X’s chosen remedy of certiorari and direct recourse to the Supreme Court is improper. Under the Doctrine of Hierarchy of Courts in certiorari petitions, although the Supreme Court has concurrent jurisdiction in certiorari cases, a direct recourse to the Supreme Court should be exercised only where absolutely necessary or where serious and important reasons exist therefor. Where the issuance of an extraordinary writ of certiorari is also within the competence of the Court of Appeals, it is in this court that the specific action for the writ’s procurement must be presented. [Montes v. Court of Appeals, 4 May 2006] In this case, there is no showing of any special and important reason for a direct recourse to the Supreme Court. Hence the direct filing of the certiorari petition with the Supreme Court is improper.

Civil Procedure: Appel; Final order subject to appeal b) Assuming that Mr. X’s motion to dismiss on the ground of lack of jurisdiction was instead granted by the RTC, the proper remedy of ABC Homeowners Association to challenge the RTC ruling is to file a notice of appeal therefrom. Under the Rules of Civil Procedure, an appeal may be taken from a judgment or final order that completely disposes of the case. [Section 1, Rule 41] In this case, the order dismissing the case is a final order. Hence appeal is the proper remedy.

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Civil Procedure: Appeal; Modes of Appeal Alternative Answer: Assuming that Mr. X’s motion to dismiss on the ground of lack of jurisdiction was instead granted by the RTC, the proper remedy of ABC Homeowners Association to challenge the RTC ruling is to file a petition for certiorari under Rule 65. Under the Rules of Civil Procedure, an order dismissing an action without prejudice is not subject to appeal but is reviewable by a Rule 65 certiorari petition. [Pillars Property Corporation v. Century Communities Corporation, March 4, 2019]. In this case, the order of dismissal is without prejudice. Hence, the proper remedy is a petition for certiorari under Rule 65.

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II

Ms. A filed a complaint for damages against Ms. B, alleging that Ms. B negligently caused the demolition of her house's concrete fence, the top half of which fell on the front portion of Ms. A's car and permanently damaged its engine. In her answer, Ms. B denied any personal liability for the damage caused to Ms. A's car, averring that she merely acquiesced to the advice of her contractor, XYZ Construction Co., to have the concrete fence demolished. Thus, damages, if any, should be collected from it. Thereafter, Ms. A filed a motion for judgment on the pleadings, alleging that Ms. B's statement in her answer is actually a negative pregnant. Ms. B opposed the motion, reiterating her defense in her answer which purportedly rendered judgment on the pleadings improper. Ms. B also moved for the dismissal of the case on the ground of non-joinder of XYZ Construction Co., which she alleged is an indispensable party to the case. a) Is Ms. A's motion for judgment on the pleadings proper? Explain. (3%) b) Is XYZ Construction Co. an indispensable or a necessary party? Explain. (3%) c) Assuming that XYZ Construction Co. is an indispensable party, is its non-joinder a ground for the dismissal of the case? Explain. (3%)

Suggested Answers: Civil Procedure: Judgements on the Pleadings a)

Yes, Ms. A’s motion for judgment on the pleadings is proper Under the Rules of Civil Procedure, where an answer admits the material allegations of the adverse party’s pleading, the court may, on motion of that party, direct judgment on such pleading.[Sec 1, Rule 34] In this case, the Defendant Ms. B’s answer that she merely acquiesced to the advice of her contractor XYZ Construction Company does not specifically deny whether she was negligent or not or is by nature a negative pregnant. Ms. B is deemed to have admitted the material allegation that she was negligent and thus a judgment on the pleadings is proper.

Civil Procedure: Parties to Civil Actions b)

XYZ Construction Company is not an indispensable party but merely a necessary party. The SC has held that an indispensable party is one who would be directly affected or necessarily prejudiced by the judgment that would be rendered in the case. [China Bank v. Oliver, 390 SCRA 263]. On the other hand, a necessary party 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.[Section 8, Rule 3].

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In this case, XYZ Construction Company would not be directly affected or necessarily prejudiced by the judgment that would be rendered. However, XYZ CC should be joined for a complete determination or settlement of the claim so that Defendant B can claim indemnification from XYZ Construction Company.

Civil Procedure: Parties to Civil Actions; Non-joinder of parties c)

No, assuming that XYZ Construction Company is an indispensable party, the non-joinder of XYZ Construction Company is not a ground for the dismissal of the case. Under the Rules of Civil Procedure, non-joinder of parties is not a ground for dismissal of an action. [Sec. 11, Rule 3] The SC has held that dismissal is not the remedy for non-joinder of parties. The remedy is to implead the non-party, claimed to be necessary or indispensable. [Vesagas v. Court of Appeals, 371 SCRA 508.

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III

Mr. C sued Mr. D for reconveyance of property and damages, claiming that Mr. D, through fraud and forgery, was able to obtain the title to Lot No. 1234, which was previously registered in Mr. C's name. The complaint was filed before the Regional Trial Court. Instead of filing an answer, Mr. D moved to dismiss the complaint on the ground of lack of cause of action. In opposition, Mr. C argued that lack of cause of action is not a ground for a motion to dismiss as the ground provided under Section 1 (g), Rule 16 of the Rules of Court is failure to state a cause of action. Distinguish the concepts of lack of cause of action and failure to state a cause of action. Based on this distinction, is Mr. C's opposition tenable? Explain. (5%)

Suggested Answers: Civil Procedure: Cause of Action AS TO NATURE. Failure to state a cause of action relates to the failure of the allegations of the pleading to state a cause of action, while lack of cause of action relates to a failure of proof, that is, the plaintiff’s failure to prove by evidence his allegations relating to his cause of action. AS TO REMEDY. Failure to state a cause of action can be raised as an affirmative defense under Rule 8; while lack of cause of action is a ground for a demurrer to evidence under Rule 33. Mr. C's opposition tenable as lack of cause of action is not a valid ground for a motion to dismiss. Under the Rules on Civil Procedure, lack of cause of action is not a ground for a motion to dismiss. [NOTE: Under the 2019 amendments to the Rules on Civil Procedure(Section 12, Rule 8), failure to state a cause of action is no longer considered as a valid ground for a motion to dismiss].

IV

Mrs. E filed a complaint for sum of money against Mr. F in the amount of ₱ 1,000,000.00 before the Regional Trial Court (RTC). After due proceedings, the RTC ruled in favor of Mrs. E, and since no appeal was interposed thereto, the ruling became final and executory as evinced by an Entry of Judgment dated July 2, 2012. However, Mrs. E was unable to immediately move for the execution of said judgment because she had a work engagement overseas. On June 29, 2017, Mrs. E returned to the country and, on the same day, filed a motion for the issuance of a writ of execution before the RTC. On July 7, 2017, the RTC granted the motion, and consequently, issued a writ of execution in Mrs. E's favor. Was the RTC's issuance of the writ of execution procedurally infirm? Explain. (3%) Suggested Answers: Civil Procedure: Execution of Judgements Yes, the RTC’s issuance of the writ of execution was procedurally infirm. Under the Rules of Civil Procedure, a judgment must be enforced by motion within 5 years from entry thereof. Here while the motion for execution was filed within the 5-year period from 2 July 2012 or until 2 July 2017, the enforcement was not

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since the writ of execution was issued after the 5-year period. [Section 6 of Rule 39]. Hence the issuance of the writ of execution was procedurally infirm.

V

Mrs. G defaulted in the payment of her loan obligation with Z Bank. As such, Z Bank extrajudicially foreclosed Mrs. G's mortgaged property and sold it at public auction where it emerged as the highest bidder. Eventually, a certificate of sale was issued in Z Bank's favor, and title to the property was later consolidated under the bank's name. Claiming that Z Bank used fraudulent machinations in increasing the interest and penalty charges on the loan, thereby making it impossible for her to pay, Mrs. G filed before the Regional Trial Court (RTC) a complaint for cancellation of consolidation of ownership over a real property with prayer for the issuance of a writ of preliminary injunction against Z Bank. Immediately thereafter, the RTC issued an ex parte writ of preliminary injunction enjoining Z Bank from disposing of the foreclosed property or taking possession thereof. Did the RTC err in issuing the writ of preliminary injunction ex parte? Explain. (3%) Suggested Answers: Civil Procedure: Preliminary Injunction Yes, the RTC erred in issuing the writ of preliminary injunction ex parte. Under the Rules of Civil Procedure, a writ of preliminary injunction cannot issue ex parte but only after notice and hearing to the adverse party. [Section 5, Rule 58]

VI

Mr. H filed a complaint against Mr. I to recover the amount of P500,000.00 based on their contract of services. In his answer, Mr. I admitted that he has yet to pay Mr. H for his services based on their contract but nevertheless, interposed a counterclaim alleging that Mr. H still owed him rental arrearages for the lease of his apartment also amounting to P500,000.00. It has come to Mr. H's attention that Mr. I did not pay any filing fees when he filed his answer. As such, Mr. H moved to dismiss the counterclaim. In response to Mr. H's motion, Mr. I averred that the non- payment of filing fees was purely based on inadvertence and that the said filing fees had already been paid as of date, as evinced by the official receipt issued by the clerk of court therefor. a) What is the nature of Mr. l's counterclaim? Is the payment of filing fees required for such counterclaim to prosper? Explain. (3%) b) Should Mr. I's counterclaim be dismissed? Explain. (3%) Suggested Answers: Civil Procedure: Civil Procedure; Pleadings; Counterclaims a)

Mr. I’s counterclaim is in the nature of a permissive counterclaim.

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Under the Law on Civil Procedure, a permissive counterclaim is one which does not arise out of or is connected to the transaction or occurrence constituting the subject matter of the opposing party’s claim. Here Mr. I’s counterclaim for rental arrearages does not arise out of or is connected to the service contract which is the subject matter of the complaint. Hence Mr. I’s counterclaim is in the nature of a permissive counterclaim. Yes the payment of filing fees is required for such counterclaim to prosper. Under the Law on Civil Procedure, the payment of docket fees on a permissive counterclaim is jurisdictional and hence required for the counterclaim to prosper. Civil Procedure: Civil Procedure; Pleadings; Counterclaims; Payment of Docket Fees b)

Mr. I’s counterclaim should not be dismissed. The SC has held that the non-payment of filing fees is not a ground for dismissal if the failure to do so was not in bad faith. Here there was no bad faith or intent on the part of Mr. I to evade the payment of the docket fees as the nonpayment was merely inadvertent as shown by the fact that the docket fees had already been paid. VII

As a result of an anonymous complaint, Mr. J, a local public official, was held administratively liable for Grave Misconduct by the Office of the Ombudsman (Ombudsman) in Administrative Case No. 1234. As such, he was imposed the penalty of dismissal from service. The Ombudsman also found probable cause to indict him for violation of Section 3 (b) of Republic Act No.3019, or the "AntiGraft and Corrupt Practices Act," in Criminal Case No. 4321. Mr. J moved for the reconsideration of the Ombudsman's Joint Decision but was denied. Unperturbed, Mr. J filed a petition for certiorari under Rule 65 of the Rules of Court before the Court of Appeals (CA), assailing the Ombudsman's Joint Decision in Administrative Case No. 1234 and Criminal Case No. 4321. However, the CA dismissed the petition outright, holding that such petition constitutes an improper remedy to assail the administrative and criminal aspects of the aforementioned Ombudsman ruling. Was the CA's dismissal of Mr. J's petition correct? Explain. (5%) Suggested Answers: Civil Procedure: Post-Judgement Remedies; Review of final judgments or final orders of the Ombudsman Yes, the CA’s dismissal of Mr. J’s petition was correct. The Supreme Court has held that the proper remedy from the decision of the Ombudsman in an administrative disciplinary case is a petition for review to the Court of Appeals under Rule 43 and not a special civil action for certiorari. [Fabian v. Desierto, 16 September 1998]. The Supreme Court has also held that the proper remedy an aggrieved party from a decision or order of the Office of the Ombudsman in a criminal case is to file a petition for certiorari before the Supreme Court. [Estrada v. Desierto, 445 SCRA 655 (2004)]. Here while Mr. J availed of a special civil action for certiorari, he filed it with the CA and not the Supreme Court. Hence the dismissal of Mr. J’s petition for certiorari was correct.

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VIII

Ms. A filed a petition for a writ of amparo, claiming that she was being threatened by Mr. B, her ex-boyfriend, with whom she has a child out of wedlock, named C. Ms. A alleged that since she started dating someone else, Mr. B began stalking her, parking his car on the street outside her house, and watching her house until the wee hours of the morning. She thus feared for her life. a) Is Ms. A entitled to a writ of amparo? Explain. (2.5%) b) Assuming that Mr. B took away C without Ms. A's knowledge and consent, what is the proper remedy for Ms. A to immediately recover C's custody? Explain. (2.5%) Suggested Answers: Special Proceedings: Writ of Amparo a)

No, Ms. A is not entitled to a writ of amparo. The Supreme Court has held that a person is not entitled to the issuance of a writ of amparo against private individuals or entities if there is no showing of direct or indirect government participation in the violation of the aggrieved person’s right to life, liberty, or security. Here there is no showing of direct or indirect government participation in Mr. B’s stalking of Ms. A. Hence Ms. A is not entitled to a writ of amparo. [Navia v. Pardico, 19 June 2012; Santiago v. Tulfo, 21 October 2015

Special Proceedings: Writ of Habeas Corpus b)

Assuming that Mr. B took away C without Ms. A’s knowledge and consent, the proper remedy for Ms. A to immediately recover C’s custody is to file a petition for writ of habeas corpus in relation to custody of minors. Under the Law on Special Proceedings, the writ of habeas corpus extends to all cases by which the rightful custody of any person is withheld from the person entitled thereto. The writ may be used to immediately recover custody since in the calendar of cases, preference is given to habeas corpus cases [Section 1, Rule 20] and the judge may forthwith adjourn a habeas corpus case into the court upon the return of the writ. [Section 12, Rule 120].

IX

Ms. N initiated a special proceeding for the correction of entries in the civil registry under Rule 108 of the Rules of Court before the Regional Trial Court (RTC), impleading only the Local Civil Registrar therein. In her petition, Ms. N sought to change the entry in her birth certificate with respect to the date of her parents' marriage from "May 22, 1992" to "not married." The Office of the Solicitor General opposed the petition, arguing that Ms. N's parents should have been impleaded in the proceeding. In response, Ms. N argued that this was not necessary since it was an entry in her own birth certificate which she intended to change. Hence, it was a matter personal to her, and as such,

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the participation of her parents in the case could be dispensed with. Is Ms. N's position correct? Explain. (3%) Suggested Answers: Special Proceedings: Correction of Entries in the Civil Registry No, Ms. N’s position that her parents need not be impleaded in the petition for correction of entries is not correct. Under the Law on Special Proceedings, in a petition for correction of entries in the civil registry under Rule 108, all person who have any interest which would be affected by the cancellation should be impleaded. Here the parents’ interest would be affected by the correction in the entry from married to not married. Hence the parents should be impleaded in the petition. [S3 R108; Onde v LCR, 10 Sep 2014]

X

Distinguish the following: a) Writ of kalikasan and writ of continuing mandamus (3%) b) Warrant to Search, Seize, and Examine Computer Data (WSSECD) and Warrant to Examine Computer Data (WECD) (3%)

Suggested Answers: Special Proceedings: Writ of Kalikasan; Writ of Continuing Mandamus a)

A writ of kalikasan is distinguished from a writ of continuing mandamus as follows: AS TO NATURE: A writ of kalikasan is directed against public or private individuals or entities who by act or omission violate or threaten to violate a person’s right to a balanced and healthful ecology, while a writ of continuing mandamus is directed against public individuals or entities who neglect the performance of a ministerial duty in connection with the enforcement or violation of an environmental law or regulation or unlawfully exclude another from the enjoyment or use of an environmental right. AS TO MAGNITUDE: A writ of kalikasan is available in cases involving environmental damage of such magnitude as to prejudice the life, health, or property of inhabitants in two or more cities or provinces; while there is no such requirement on magnitude with respect to a writ of continuing mandamus. AS TO WHERE FILED: A petition for writ of kalikasan is filed with the Supreme Court or with any of the stations of the Court of Appeals, while a petition for writ of continuing mandamus is filed with the Regional Trial Court exercising jurisdiction over the territory where the actionable neglect or omission occurred or with the Court of Appeals or the Supreme Court.

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Criminal Procedure: Cybercrime Warrants b)

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