CIV PRO Q's.pdf

Civ Pro 2 Recit Questions 1. Discuss Factual Issue Bar Rule. Under Rule 45 of the Rules of Court ➔ only questions of law may be raised in a petition for review to the Supreme Court. Questions of fact, such as the appreciation of e...

Civ Pro 2 Recit Questions 1. Discuss Factual Issue Bar Rule. Under Rule 45 of the Rules of Court ➔ only questions of law may be raised in a petition for review to the Supreme Court. Questions of fact, such as the appreciation of evidence or factual findings of lower courts, are not generally reviewable. This is known as the Factual Issue Bar Rule. ➔ The petition for review filed before the SC may include an application for writ of preliminary injunction or other provisional remedies and shall only raise questions of law. 2. Appeal by writ of error. A writ of error is a legal instrument used to correct errors in a judgment. Under Rule 41, ordinary appeals (writ of error) may be filed to correct errors of fact or law by a trial court. The appeal involves the transmission of the entire record to a higher court for review. ➔ This is an ordinary appeal which is an appeal to the Court of Appeals on cases decided by the Regional Trial Court in the exercise of its original jurisdiction where questions of fact, or mixed questions of fact and law are raised, but never on pure question of law. 3. When is appeal perfected? When does the court lose jurisdiction? Sec 4 Rule 40 & Sec 9 Rule 41 Ordinary Appeal Record on Appeal - Filing of notice of appeal in due time - upon approval of the record on appeal filed in - Court loses jurisdiction upon perfection of due time appeals filed in due time and the expiration of - Court loses jurisdiction only upon approval of time to appeal of the other parties the records on appeal filed in due time and the expiration of time to appeal of the other parties Sec 8 Rule 42 - Perfection of Appeal - upon timely filing of petition for review - Payment of fees (docket & other lawful fees) ➔ RTC loses jurisdiction of the case upon the perfection of the appeals filed in due time and expiration of time to appeal of other parties ➔ However, before CA gives due course to the petition, RTC may exercise its residual jurisdiction (CoPOW) 4. Question of Law vs. Question of Fact. Question of Law - arises when there is doubt as to the applicability of a law on a given set of facts Question of Fact - arises when there is doubt as to the truth/falsity of a given set of facts Under Rule 45, only questions of law can be raised Ordinary appeal (first appeal) Petition for review (second appeal) Appeal by certiorari RULE 45 RULE 41 & 44 RULE 42 & 43 RTC in exercise of its original RTC in exercise of its appellate RTC to SC in exercise of its original jurisdiction jurisdiction jurisdiction RTC - CA RTC - CA Pure questions of law directed to Supreme Court F & L (mixed) F & L (mixed) Covers pure questions of law (but never on pure question of law) (can be pure questions of law) 5. 7 kinds of orders by a court where no appeal may be taken therefrom. (RIDAPSES) - Relief - Interlocutory order - Dismissing an appeal - Dismissing an action without prejudice - Dismissing a motion to set aside a judgment - Execution - Order against one or more of several parties Under Rule 41, Section 1, the following orders are not appealable: 1) Order denying petition for relief or any similar motion seeking relief from judgment 2) Interlocutory order 3) Order denying/dismissing a an appeal 4) 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 5) Order of execution 6) 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 7) Order dismissing an action without prejudice (remedy is to refile not appeal) 7.Equitable Jurisdiction. Equitable jurisdiction refers to the authority of a court to grant relief not available under strict legal rules, such as issuing injunctions or appointing receivers, when fairness requires it. ➔ It is grounded on precepts of conscience and not on any sanction of positive law, for equity finds no room for application where there is law ➔ Adjudicates a controversy according to the common precepts of what is right and just without inquiring into the terms of the statutes ➔ When the Court relaxes the strict application of the rules where strong considerations of justice are manifest, the court is said to be in the exercise of its equity jurisdiction. (Joval Notes) 8. What are the original cases cognizable by the Supreme Court? Under Rule 56, Section 1 of the Rules of Court, the Supreme Court has original jurisdiction over the following cases: 1) petitions for certiorari,  2) prohibition, 3) mandamus, 4) quo warranto, 5) habeas corpus, 6) disciplinary proceedings against members of the judiciary and attorneys, and 7) cases affecting ambassadors, other public ministers and consuls 9. What are the grounds for annulment of judgments and final orders or resolutions? When can it be filed? Rule 47 Sec 2, the grounds for annulment of judgment are: ➔ (1) Lack of jurisdiction. ➔ (2) Extrinsic fraud. - fraudulent acts which keep a person from obtaining information about his/her rights Rule 47 Sec 3: Period for filing action ➔ Based on extrinsic fraud: filed within four (4) years from the discovery of fraud. ➔ Based on Lack of jurisdiction: before it is barred by laches or estoppel 10. Grounds where a petition for review may be dismissed (doorstep dismissal) Sec 4 Rule 42: Court may dismiss the petition motu proprio if it finds the same to be: MDU a) patently without merit b) prosecution manifestly for delay a) questions raised are too unsubstantial to require consideration 11. Doctrine of Residual Jurisdiction (CoPOW) Residual jurisdiction refers to the authority of the trial court to issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal; to approve compromises; to permit appeals by indigent litigants; to order execution pending appeal in accordance with Section 2, Rule 39; and to allow the withdrawal of the appeal, provided these are done prior to the transmittal of the original record or the record on appeal, even if the appeal has already been perfected or despite the approval of the record on appeal or in case of a petition for review under Rule 42, before the CA gives due course to the petition. 12. Principle of Immutability of Judgment? Under the doctrine of finality of judgment or immutability of judgment, a decision that has acquired finality becomes immutable and unalterable, and may no longer be modified in any respect. The same rule admits of the following exceptions: 1. the correction of clerical errors, the so-called nunc protunc entries which cause no prejudice to any party, 2. void judgments, and 3. whenever circumstances transpire after the finality of the decision rendering its execution unjust and inequitable 13. What are the modes of appeal? Ordinary appeal - appeal by writ Petition for review (second Appeal by certiorari of error (first appeal) appeal) RULE 45 RULE 41 & 44 RULE 42 & 43 Appeal to CA in cases decided Appeal to CA in cases decided RTC to SC in exercise of its by RTC in exercise of its original by RTC in exercise of its original jurisdiction jurisdiction appellate jurisdiction Pure questions of law directed to Supreme Court Covers questions of fact or Covers questions of fact, of law, Covers pure questions of law mixed questions of fact and law or mixed questions (but never on pure question of of fact or law. (can be pure law) questions of law) 14. Doctrine of Exhaustion of Administrative Remedies Under the doctrine of exhaustion of administrative remedies, a party must first avail of all administrative processes available before seeking the courts' intervention. The administrative officer concerned must be given every opportunity to decide on the matter within his or her jurisdiction. 15. Contents of Notice of Appeal Notice of Appeal (Sec 5 Rule 41) 1. The full names of all the parties to the proceedings shall be stated in the caption of the record on appeal 2. judgment or final order from which the appeal is taken and, 3. Material dates showing timeliness 16. When will appeal be filed from the MTC to the RTC? Not sure Under Sec 2 Rule 40 ➔ An appeal may be taken within 15 days after notice to the appellant of the judgment or final order appealed from. ➔ Where a record on appeal is required, appellant shall file a notice of appeal and a record on appeal within 30 days after notice of judgment _______________________________________________________________________________________________________ ___________ 1. What are the contents of the affidavit for preliminary attachment? Under Rule 57, Section 3 of the Rules of Court, the affidavit must state: ○ The action is for the recovery of a specific sum of money or damages. ○ The existence of grounds for attachment (e.g., defendant is about to abscond or fraudulently disposes of property). ○ That there is no sufficient security for the claim. ○ That the amount claimed is due and just. 2. Causal fraud and Incidental Fraud. Causal fraud, under Article 1338 of the Civil Code, is fraud that induces a party to enter into a contract. Incidental fraud (Article 1344), on the other hand, is deceit that does not affect consent but may result in damages. Incidental fraud committed after the obligation is contracted or fraud committed during the performance of the obligation. Causal fraud was committed prior to or simultaneously incurring the obligation that means it is the fraud that induced the other party to enter into a contract suct that there was no fraud committted by the adverse party the other pary would not have entered into contract. 14. Instances where levied property is allowed to be sold at a public auction. Under Rule 39, Section 19, a levied property may be sold at public auction pursuant to a writ of execution to satisfy a judgment debt. This is typically done after a final judgment has been rendered and the debtor fails to pay the judgment amount. 7. Grounds for Preliminary Attachment. Under Rule 57, Section 1, the grounds include: ○ (1) When an action is for the recovery of money or damages based on fraud. ○ (2) When the defendant is about to depart the Philippines with intent to defraud creditors.  ○ (3) When the defendant has concealed, removed, or disposed of property to defraud creditors. ○ (4) When the action involves embezzlement or misappropriation of funds. 9. When to file for TRO? Duration? A TRO may be filed when immediate relief is necessary to prevent irreparable harm (Rule 58, Section 5). An executive TRO, issued ex parte, is effective for 72 hours. A regular TRO issued by the court lasts for 20 days. 10. 5 Grounds for Discharge of Attachment. Under Rule 57, Section 13, the grounds for discharge of attachment are: ○ (1) The attachment was improperly or irregularly issued. ○ (2) The bond posted is insufficient or defective. ○ (3) The amount attached is excessive. ○ (4) The debtor has posted a sufficient counterbond. ○ (5) Other grounds showing that the plaintiff is not entitled to the attachment. 11. Four (4) instances a party may apply for a verified application for receivership. Under Rule 59, Section 1, a party may apply for receivership in the following instances: ○ (1) When the property involved is in danger of being lost, removed, or materially injured. ○ (2) In an action by a mortgagee for foreclosure when the property is in danger of being wasted. ○ (3) In cases where the rights of a party are violated or disputed regarding property. ○ (4) After judgment, to preserve the property during the appeal or to enforce the judgment. 12. Sunset Clause. A sunset clause is a legal provision that sets an expiration date on a law or regulation unless action is taken to extend it. The clause ensures that the provision will not be permanent unless renewed. 17. 4 instances a party may apply for verified application for receivership. As mentioned above, the grounds under Rule 59, Section 1 include: ○ (1) Danger of property being lost or materially injured. ○ (2) Mortgagee’s action for foreclosure. ○ (3) Rights over the property are disputed. ○ (4) Post-judgment to secure the execution or during an appeal. 18. What is pactum commissorium? Is it valid? Pactum commissorium, prohibited under Article 2088 of the Civil Code, is a stipulation where the creditor automatically acquires ownership of the property if the debtor fails to pay. It is considered void as it is against public policy. 19. What is the remedy of terceria? Terceria, under Rule 39, Section 16, is a third-party claim by someone who asserts a right to the property seized by the sheriff. The claimant may file an affidavit of third-party claim to recover the property. 20. What is an executive TRO and its duration? An executive TRO is issued by the court without hearing the adverse party (ex parte). It lasts for 72 hours (Rule 58, Section 5). After hearing both parties, the court may extend the TRO for up to 20 days. 21. Requisites for petition for certiorari. Under Rule 65, Section 1, the requisites for certiorari include: ○ (1) The tribunal, board, or officer acted without or in excess of jurisdiction or with grave abuse of discretion. ○ (2) There is no appeal or any plain, speedy, and adequate remedy. ○ (3) The petition is filed within 60 days from notice of judgment or final order. 22. Where can you file an interpleader case? Under Rule 62, an interpleader action may be filed in the Regional Trial Court where the subject matter of the dispute is situated or where the parties or claimants reside. It is filed when two or more parties claim the same property or amount, and the stakeholder seeks relief from conflicting claims.