Critical Areas in Remedial Law PDF

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CRITICAL AREAS IN REMEDIAL LAW Dean Tranquil S. Salvador III Let me start with the latest amendment to Rule important! You have always read and it has 14 which took effect in March of this year. Rule always been said that payment of filing fees is 14 §12 –On service of summons to a foreign jurisdict...

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CRITICAL AREAS IN REMEDIAL LAW

Dean Tranquil S. Salvador III Let me start with the latest amendment to Rule 14 which took effect in March of this year. Rule 14 §12 –On service of summons to a foreign juridical entity. If you will look at your code, all that your code will tell you is that service of summons to a foreign juridical entity which is transacting business in the Philippines is either any of the following: 1. to a resident agent; 2. a government official designated by law; 3. any officer found in the Philippines. However, with the amendment in March of 2011 they have expanded this and they have added these phrases, they said that if a foreign juridical entity is not registered in the Philippines service of summons can be made WITH LEAVE OF COURT in any of the following: 1. service of summons to a foreign court where the defendant resides through the facilities of the Department of Foreign Affairs; 2. by publication in the place where the defendant corporation holds office AND service of summons by registered mail in their last known address here in the Philippines; 3. service of summons by facsimile or other means of electronic messaging for as long as it can generate proof of service; and 4. other means as may be determined by the court subject to its discretion. Now, let me now give you some highlights of what I feel are important topics for you to consider. First and foremost class let me touch on the MANNER OF FILING FESS. This is

important! You have always read and it has always been said that payment of filing fees is jurisdictional. What I would like to tell you that there is also a requirement of paying filing fees in criminal cases and that is found in RULE 111. I am making now a comparison, let me touch on CIVIL FILING FEES and I would like to cite the case of Philippine First Insurance vs. First Logistics citing the case of Sun Insurance of course this case of Philippine First Insurance created two scenarios. I will not repeat the Sun Insurance case because I know you know that. The First Insurance case it says, if the claim is for money, the action is for money and there is no prayer for the amount and for that reason there is no payment of filing fees the court can dismiss the case. If there is an allegation or claim for damage or money that has no value at all the court would expunge it. The second scenario is, if the claim is other than for money but its coupled of course with other claims for money but the payment of filing fees are what...INSUFFICIENT! Then, the court will not dismiss the case outright but will allow you reasonable time to pay filing fees. Now you may have come across with the case of Del Rosario and I would like to be very clear with this, the basic rule class in terms of insufficiency in terms of payment of filing fees. If your payment is based on what you believe was the correct amount as assessed by the clerk of court, then you cannot be faulted. Do you follow? And therefore the court is deemed to have acquired a jurisdiction, are we clear? However class, if there was blatant disregard and bad faith with an intention not to pay the government with the correct filing fees then Manchester rule will apply, the court will not acquire jurisdiction. Now let me touch on the case of Proton Pilipinas vs. Banque Nacional De Paris, why am I even citing this in terms of filing fees in civil cases. As you will recall in the Sun Insurance case; 1. you have to pay filing fees within the prescriptive period or reglementary period;

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Dean Tranquil S. Salvador III 2. you will have to pay for filing fees for permissive counterclaims --- Do you have to file a filing fee for a compulsory counterclaim? If you follow the case of Alday vs. FGU for the longest time the court had made pronouncement that you do not have to pay filing fees for compulsory counterclaim. However, with the case of Korean Technologies where the Supreme Court made no explanation at all but merely said, citing RULE 141 which was amended in 2004 there is a requirement of payment of filing fees not only for compulsory counterclaim but also for crossclaim. Do you follow? So class you will take note. So sir, you will ask me how will I answer the question. Of course now its multiple choice and I would tell you in that light you will get the best answer, you should identify the best answer. I am giving you this so that when you choose the best answer you would know how to pick the best answer. If it says, according to jurisprudence or if it says Korean Technology case, that is the latest on the matter. You will have to pay filing fees for compulsory counterclaim, that is a 2008 case. 3. if you did not pay or if there was insufficient payment, it will be alien on the judgment award. You remember that, it will be alien on the judgment award. But I am citing to you the case of Proton Pilipinas for one particular reason, you could only use and avail that lien on the judgment award IF THE CLAIM FOR INTEREST OR DAMAGES HAS ACCRUED WHILE THE ACTION IS PENDING. Can you follow? Has accrued while the action is pending, because of course you cannot expect them to ascertain the amount of filing fees because it has not yet accrued. But if the claim for interest or damages has

been determined, meaning it has already ripen then you will have to pay filing fees. Now, let me now touch on the CRIMINAL FILING FEES. The pertinent provision when you talk of criminal filing fees is RULE 111 §1. And what does it say; you will have to pay filing fees for MORAL, EXEMPLARY, NOMINAL and TEMPERATE. Liquidated is not included, for ACTUAL or COMPENSATORY DAMAGES you will not be assessed filing fees in Criminal Cases. However, I will have to add this; for BP 22 cases ALL CLAIMS FOR DAMAGES will have to assessed filing fees. I will repeat ALL CLAIMS FOR DAMAGES will have to assessed MORAL, EXEMPLARY, NOMINAL, TEMPERATE and LIQUIDATED including ACTUAL DAMAGES, all of those that is found in RULE 111. Now, let me touch on matters on JURISDICTION. I will not tell you it is RA 7691 amending BP 129 because I assume you know. Tama?! BP 129 as amended by RA 7691. I will not go down to the nitty gritty of the enumeration of jurisdictions in civil cases but I would like you to remember this so that you will have something to cling on when it comes to figures. In Metro Manila, the claim should exceed Php400,000.00 - in Metro Manila EXCEEDING. Remember that word, EXCEEDING. So kapag tinanong sa bar, which court has jurisdiction Php400,000.00? Metropolitan Trial Court. Baka sabihin sayo a. Municipal Trial Court; b. Metropolitan Trial Court; c. Municipal Circuit Trial Court. What is the answer? B. METROPOLITAN TRIAL COURT. Are we clear? So you have to be very accurate. Now, for OUTSIDE of Metro Manila exceeding the amount of Php300,000.00 and I would like you to always remember this catch-all phrase that ju isdi tio i CIVIL CA“E“ is dete i ed by the amount of the claim exclusive of DAMAGE“, INTERE“T, ATTORNEY’“ FEE“ a d COST OF SUIT. However, in the light of Supreme Court Circular 09-94 that clarified that provision of BP 129 as amended by RA 7691. If the claim

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Dean Tranquil S. Salvador III is purely for DAMAGES, the amounts that I have mentioned will apply. Are we clear? Now, before I move on in my comparison to a CRIMINAL CASE. Let us look at the basic rule. What is the GENERAL RULE when it comes to question of jurisdiction? Can QUESTION OF JURISDICTION be raised at anytime? Even on appeal? The answer is YES!!! That is the RULE! Eh sir, how about ESTOPPEL BY LACHES on question of jurisdiction. That is what? That is rather the exception. That was cited in the case of Figueroa vs. People, the Supreme Court made it very clear that the QUESTION OF JURISDICTION COULD BE RAISED AT ANYTIME, EVEN ON APPEAL-that is the general rule. The exception is the case of Tijam vs. Sibunghanoy on QUESTION OF ESTOPPEL BY LACHES ON QUESTION OF JURISDICTION – meaning there was UNREASONABLE DELAY IN YOUR HAVING QUESTIONED THE LACK OF JURISDICTION. Now, how about jurisdiction of court in CONTEMPT CASES? Ariola case – how will the court acquire jurisdiction in INDIRECT CONTEMPT. Take note INDIRECT CONTEMPT, the court will acquire jurisdiction UPON FILING OF A VERIFIED PETITION. Take note there are two ways to initiate an action for indirect contempt, it is not by motion. One is by VERIFIED PETITION and the second one is UPON A FORMAL CHARGE by the judge. You can no longer initiate an indirect contempt proceeding today through a motion – that is prohibited. Take note that in CIVIL CASES jurisdiction can be separate from venue, because on VENUE; parties can agree, parties can stipulate, it could be subject to a waiver, it could be subject of consent. That is not true in CRIMINAL CASES, in criminal cases VENUE IS JURISDCITIONAL – the place of commission is the place where the acet tion will be instituted. Now, let me ask you this question; How about the case of Mangundadatu. The crime was committed where? In Maguindanao. Do you follow? How come the action is prosecuted in Quezon City and the judge handling the case is a judge from Quezon City. Sir, Is that not in

violation of your statement that venue is jurisdictional? NO. Class you cannot compromise venue in criminal cases, you cannot stipulate, it cannot be subject of waiver, it cannot be subject of consent. So what happened to that case? What happened to that case was the action was first instituted in Maguindanao. What was transferred to Quezon City is the VENUE OF HEARING/TRIAL and that is subject to the approval of the Supreme Court based on the constitution. So we cannot compromise that, we cannot consent to a transfer in criminal cases of venue for purposes of institution, IT IS ALWAYS IN THE PLACE OF ITS COMMISSION. Unless of course it is a CONTINUING OFFENSE or a TRANSITORY OFFENSE where there is two or more venue. Now let me ask you this question. How about class a REHABILITATION CASE, is that ordinary civil action? Let us define ORDINARY CIVIL ACTION. Ito class basic – an ordinary civil action is: a.) establishes an action or a right; b. Every ordinary civil action should have a cause of action; c.) it is subject of special rules. What is the answer? B. Every ordinary civil action should have a cause of action. How about a CORPORATE REHABILITATION CASE is it an ordinary civil action? NO. It is a special proceeding, the nature of the proceeding is summary in nature and it requires no cause of action. Now let us proceed to the next item. I am still on the item of parties, misjoinder of parties. In RULE 3, is a misjoinder of parties a ground for dismissal? The answer is NO. A party could be dropped or severed without dismissing the case. However, if you talk of an indispensable party, the non-inclusion of an indispensable party. Will it cause the dismissal of the case? YES. If it an indispensable party. However, if it is only a necessary party will that cause the dismissal of the case? NO. That will not cause the dismissal of the case. What if a necessary party refused to be included, what is your remedy? Your remedy is to implead him as an unwilling co-plaintiff. Now class, having

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Dean Tranquil S. Salvador III touched on misjoinder of parties. Let me now touch on, joinder of causes of action. In criminal cases do you have causes of action? In criminal cases according to RULE 110 §9 – You have CAUSE OF ACCUSATION. You have cause of action in CIVIL CASES, but in CRIMINAL CASES you have cause of accusation. Let us look at joinder of cause of action. I would like you to remember the rules. According to RULE 2 §5 it says: that causes of action could be joined whether in the alternative or otherwise. Take note, it could be in the alternative or otherwise and you have to take note of the following rules: 1. you cannot those covered by special rules – for example: you have an action for ejectment and an action for recovery of sum of money. Can you join those? NO. You cannot, because one is covered by ordinary civil action and the other is special civil action. Let us you want a determination of your right as legitime in a holographic will and the other is reconveyance of a title of property which you claim you own. Can you join them? NO. One involves special proceeding probate and the other involves ordinary civil action; 2. you will have to respect joinder of parties – yes, you could join causes of action but you have to respect joinder of parties, permissive joinder of parties – RULE 3 §6. Otherwise, there will be confusion and take note of this IT SHOULD ARISE FROM THE SAME TRANSACTION OR SERIES OF TRANSACTION AND SHOULD HAVE COMMON FACT OR LAW WHETHER JOINTLY, SEVERALLY OR IN THE ALTERNATIVE. So you cannot join together causes of action where

parties are totally unrelated. When their claims are not intertwined or interlocked, you cannot do that. Otherwise you will only cause confusion.

3. you will have to respect JURISDICTION and VENUE – and of course if one claim falls within the jurisdiction of the RTC, all other claims will fall in the RTC. 4. totality rule – it is the SUM OF ALL THE MONETARY CLAIMS, therefore if taken separately, jurisdiction could be determined but if taken together you have another set of jurisdiction.

Let us look at the case of Oca vs. Limbaring, in terms of REAL PARTY IN INETEREST. What does it tell us? Should a party be a real party in interest only because his right arises from a contract? Tama ba yun? Should you say that a party is a real party in interest if they a party to the contract or signatories to the contract. The GENERAL RULE is YES. However, not all claims would arise from a contract. Therefore, it could also arise from tort. There is no contractual obligation, from negligence could there be an action arising from tort...YES! It is also possible class that you are not a party or signatory to the contract but you could be a real party in interest, if there is a breach in the contract. What is that? If there is a stipulation pour autrui. So please, take note of those. Another question that I would like to answer is in connection with a case decided by court in connection with agrarian dispute. What if there is a KA“UNDUAN i the DARAB? What if the e is a KA“UNDUAN as to ho ould e e titled to a piece of land and that was resolved and determined by the DARAB? For that reason the DARAB case was terminated. Let us say the

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Dean Tranquil S. Salvador III KA“UNDUAN as ot o plied ith. Whi h court has jurisdiction, is it the REGULAR COURT or the DARAB? It remains to be with the DARAB, it arising from the tenancy relation and even if it was already terminated, the source was a TENANCY REALTIONSHIP.

the lawyer, whether upon knowledge or upon the fact of fact. What is the answer? B. The 30 days is counted from the FACT OF DEATH, not from the knowledge but from the fact of death;

Now, let me touch on a question on SUBSTITUTION. What about substitution? Class, I would like to call your attention on the case of Sumaljap. I would like you to bear this in mind, a lot of questions could be taken from this §16 e’ e aited fo this uestio si e 00 . When you study §16 of RULE 3 bear in mind that you also have to study at the same time §20 of RULE 3. Tandaan niyo yan ha! What is the rule? The first thing that you will have to remember is, there should be DEATH. Death of who? Death of a PARTY. The provision of the law made no mention as to who died. It does not say it is the plaintiff or the defendant. I want to be very clear with that, it does not say it is the plaintiff or the defendant. But what does it say, A PARTY DIES. So it could be the plaintiff or the defendant. So despite the death of the party the action survives, take note of that. So what are kinds of action wherein, if a party dies the action is extinguished – actions which are purely personal that without him the action can no longer be performed like if you are a painter, you can no longer perform even specific performance if you are dead. If you are a singer you can no longer perform. If you are to give support, of course you are dead. What are the rules that you have to remember? I will group it into this. What is the duty of a counsel?

2. to inform the court of the NAME and ADDRESSES of the legal representative – take note, according to the provision the legal representative could be who? The legal representative could be an HEIR, there is no requirement that it is an executor or administrator but you can have an executor or administrator but I would suggest that you appoint an heir because you do not need court approval.

The duty of a counsel is: 1. to inform the court of the FACT of death – within how many days in case of substitution by reason of death; a. Within 30 days from knowledge; b. Within 30 days from the fact of death; c. At the option of

What is the duty of the court? The duty of the court is: 1. to come up with a notice for the lawyer or for the representative to appear within 30 days from receipt of notice; and 2. to order substitution.

Take note of this, absence of any of these will not lead to a valid substitution. Eh sir, kung mali ang husgado? Walang substitution. Do you follow? That is already answered in the case of Brioso. Kapag mali ang husgado, wala. So, both requirements should take place – the duty of the lawyer and the duty of the court. Now, let me call your attention to this case of Sumaljap. What happened in this case? Class ganito nangyari ditto eh. During the lifetime of the deceased he transferred his interest to someone else, not known to other people. He died, the lawyer now would like to make the transferee in interest as the substitute. During

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Dean Tranquil S. Salvador III the lifetime of the deceased there was a transfer of interest but unfortunately he died. Now the lawyer would like to name NOT an executor, NOT an administrator and NOT even an heir. Can he do that? The court said NO. You cannot do a transfer of interest once the transferee of transferor had died. The transfer of interest should take place during the lifetime of both of them. In this particular case, the person who transferred had passed away therefore the regular provision of §16 of RULE 3 should apply. Before I leave this topic of substitution in civil cases, let me ask the three kinds of substitution in civil cases. What are the three kinds? 1. substitution by reason of death; 2. death of a public officer – this is §17. Let me give you the requirements briefly. a. there should be a death of a public officer; b. there is a new one appointed – a successor to take his place but before a successor could take his place, this is the duty of the requirement of the law, he should have been: i. notified; ii. he should have been given the opportunity to be heard; and iii. he adopts or threaten to adopt the act of the predecessor Wag niyo munang i-substitute kaagad. Let us say a department secretary died, and

there is new one appointed does it mean that he is substituted to the actions of the secretary – NO. You have to comply with the requirement of law. 3. transfer of interest. §19 Let me touch on §20. I cannot discuss §16 without touching on § 20. What does §20 tell us? There is death also. Take note, there is death. But who dies? Here the provision of law is specific. Who dies? The DEFENDANT dies not the plaintiff. So class, under this scenario it should be the defendant who dies. Second item that I would like you to take note. The NATURE OF THE ACTION. Take note, the nature of the action is very specific – it involves a claim for sum of money whether express or implied. IT SHOULD BE A CLAIM FOR MONEY. It is like this, the plaintiff dies and the claim is for a sum of money, the defendant is alive. What provision will apply? Will §16 or §20? NO. §16 will apply. Because the provision of §20 is very specific. It says, the defendant dies a...