Preliminary Injunction

Cases July 8, 2008:

1. First Global Realty & Development vs San Agustin
2. Feranil vs Arcilla

The two cases above have discussed the requisites and purpose for the issuance of preliminary injunction.

Civil Procedure Questions

1. What are the remedies of the plaintiff if the motion to dismiss is granted?

It depends on the ground specified in his motion to dismiss.
(a) If dismissal is without prejudice, the defendant may REFILE
(b) File an APPEAL if the grounds in the motion are based on prescription, res adjudicata, lis
pendens, or statute of frauds
(c) File for Certiorari under Rule 65 when there is grave abuse of discretion (Rule 16)


2. What are the effects of dismissal of complaint on the counterclaim?

When the complaint is dismissed upon motion of the plaintiff, 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.

When the complaint is dismissed upon motion of the defendant or upon the court's own motion, it is 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. (Rule 17)


3. A. What are the requisites before a party may be declared in default?

The following are the requisites before a party may be declared in default:
(a) failure of the party to file his answer within the time allowed;
(b) Motion of the claiming party;
(c) notice to the defending party;
(d) proof of failure to file answer;
(e) proof that the summons have been validly served;
(f) Hearing on the Motion to declare the party in default

Rule 9, Section 3. Default; declaration of. If the defending party fails to answer within the time allowed therefor, the court shall, upon motion of the claiming party with notice to the defending party, and proof of such failure, declare the defending party in default. Thereupon, the court shall proceed to render judgment granting the claimant such relief as his pleading may warrant, unless the court in its discretion requires the claimant to submit evidence. Such reception of evidence may be delegated to the clerk of court.

B. What are the remedies of a party declared in default?

(a) file a Motion under oath to set aside the order of default if the default was due to fraud, accident, mistake, or excusable negligence
(b) file a Motion for New Trial if there is new evidence
(c) Petition for relief of judgment

4. What are the effects of a declaration or order of default?

(a) The party declared in default loses standing in trial
(b) Notice of subsequent proceedings must still be served to the default party
(c) He may participate in the trial but only as a witness for the other parties
(d) Declaration of default is not tantamount to an admission of the truth of the plaintiff's complaint because the former still has to present evidence

A party in default shall be entitled to notice of subsequent proceedings but not to take part in the trial. [Rule 9, Section 3, sub-paragraph (a)]


5. What are the cases where an order of default cannot be made?

(a) Annulment of marriage;
(b) Declaration of nullity of marriage;
(c) Legal separation.

An order of default cannot be made in cases involving the annulment or declaration of nullity of marriage, or for legal separation. If the defending party in an action for annulment or declaration of nullity of marriage or for legal separation fails to answer, the court shall order the prosecuting attorney to investigate whether or not a collusion between the parties exists, and if there is no collusion, to intervene for the State in order to see to it that the evidence submitted is not fabricated. [Rule 9, Section 3, sub-paragraph (e)]


6. What are the modes of extra-territorial service?

(a) Personal service
(b) Publication plus registered mail
(c) Any other manner that the court may deem sufficient

Rule 14, Section 15. Extraterritorial service. When the defendant does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff or relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent, or in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or the property of the defendant has been attached within the Philippines, service may, by leave of court, be effected out of the Philippines by personal service as under section 6; or by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or in any other manner the court may deem sufficient. Any order granting such leave shall specify a reasonable time, which shall not be less than sixty (60) days after notice, within which the defendant must answer.


7. What is the remedy of the defendant if the motion is denied?

Rule 16, Section 4. Time to plead. � If the motion is denied, the movant shall file his answer within the balance of the period prescribed by Rule 11 to which he was entitled at the time of serving his motion, but not less than five (5) days in any event, computed from his receipt of the notice of the denial. If the pleading is ordered to be amended, he shall file his answer within the period prescribed by Rule 11 counted from service of the amended pleading, unless the court provides a longer period.


8. How is substituted service made?

Rule 13, Section 8. If service of pleadings, motions, notices, resolutions, orders and other papers filed with the court cannot be made either personally or by mail, the office and place of residence of the party or his counsel being unknown, service may be made by delivering the copy to the clerk of court, with proof of failure of both personal service and service by mail. The service is complete at the time of such delivery.

Rule 14, Section 7. If, for justifiable causes, the defendant cannot be served with summons within a reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendant's residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendant's office or regular place of business with some competent person in charge thereof.


9. What are the 3 options available to defendant upon receipt of complaint?

(1) File Motion to Dismiss
(2) File a Motion for Bill of Particulars
(3) File an Answer (may be with counter-claim, third-party claim, etc.)

Lacson vs Reyes GR No. 86250 February 26, 1990

Atty. Ephraim Serquina did not pay docket fees in his Motion for Attorney’s Fees, contending that such motion was only incidental to the probate of the will of Carmelita Farlin, he being the executor thereof. Thereafter, the heirs filed their answer and denied the claim for P68,000.00 attorney’s fees alleging that the sum agreed upon was only P7,000.00, a sum they had allegedly already paid.

The Supreme Court ruled that the court acquires jurisdiction over any case only upon payment of the prescribed docket fees. The payment of docket fees is required before the Motion for Attorney’s Fees could be validly tired.

Tacay vs RTC of Tagum GR Nos 88075-77 December 20, 1989

Tacay vs RTC of Tagum
GR Nos. 88075-77
December 20, 1989

Facts:
These were 2 separate cases originally filed by Godofredo Pineda at the RTC of Tagum for recovery of possession (acciones publiciana) against 3 defendants, namely: Antonia Noel, Ponciano Panes, and Maximo Tacay.

Pineda was the owner of 790 sqm land evidenced by TCT No. T-46560. The previous owner of such land has allowed the 3 defendants to use or occupy the same by mere tolerance. Pineda, having himself the need to used the property, has demanded the defendants to vacate the property and pay reasonable rentals therefore, but such were refused.

The complaint was challenged in the Motions to Dismiss filed by each defendant alleging that it did not specify the amounts of actual, nominal, and exemplary damages, nor the assessed value of the property, that being bars the determination of the RTC’s jurisdiction in deciding the case.

The Motions to Dismiss were denied but the claims for damages in the complaint were expunged for failure to specify the amounts. Thus, the defendants filed a Joint Petition for certiorari, mandamus, prohibition, and temporary restraining order against the RTC.

Issue:
Whether or not the amount of damages claimed and the assessed value of the property are relevant in the determination of the court’s jurisdiction in a case for recovery of possession of property?

Decision:
Determinative of the court’s jurisdiction in a recovery of possession of property is the nature of the action (one of accion publicaina) and not the value of the property, it may be commenced and prosecuted without an accompanying claim for actual, nominal or exemplary damages and such action would fall within the exclusive original jurisdiction of the RTC. The court acquired jurisdiction upon the filing of the complaint and payment of the prescribed docket fees.

(CLICK THE TITLE TO VIEW THE FULL TEXT OF THE CASE @ LAWPHIL.NET)
ANOTHER TACAY VS RTC OF TAGUM DIGEGST AT ARELLANOLAW.NET

Sun Insurance Office Ltd. vs Hon. Asuncion and Manuel Uy Po Tiong GR No. 79937-38 February 13, 1989

Facts:
Sun insurance filed a case for the consignation of premiums on a fire insurance policy with a prayer for the judicial declaration of its nullity against private respondent Manuel Uy Po Tiong. Private respondent as declared in default for failure to file the required answer within the reglementary period. Meanwhile, the Respondent Manuel Tiong also filed a case against Sun Insurance for the refund of premiums and the issuance of a writ of preliminary attachment, seeking the payment of actual, compensatory, moral, exemplary and liquidated damages, attorney’s fees, expenses of litigation, and costs of suit, but the damages sought were not specifically stated in the prayer, although it may be inferred from the body of the complaint that it would amount to about P50M. In the body of the original complaint, the total amount of damages sought amounted to about P50 Million. In the prayer, the amount of damages asked for was not stated. The amount of only P210.00 was paid for the docket fee. On January 23, 1986, private respondent filed an amended complaint wherein in the prayer it is asked that he be awarded no less than P10,000,000.00 as actual and exemplary damages but in the body of the complaint the amount of his pecuniary claim is approximately P44,601,623.70. Said amended complaint was admitted and the private respondent was reassessed the additional docket fee of P39,786.00 based on his prayer of not less than P10,000,000.00 in damages, which he paid.
On April 24, 1986, private respondent filed a supplemental complaint alleging an additional claim of P20,000,000.00 in damages so that his total claim is approximately P64,601,620.70. On October 16, 1986, private respondent paid an additional docket fee of P80,396.00. After the promulgation of the decision of the respondent court on August 31, 1987 wherein private respondent was ordered to be reassessed for additional docket fee, and during the pendency of this petition, and after the promulgation of Manchester, on April 28, 1988, private respondent paid an additional docket fee of P62,132.92. Although private respondent appears to have paid a total amount of P182,824.90 for the docket fee considering the total amount of his claim in the amended and supplemental complaint amounting to about P64,601,620.70, petitioner insists that private respondent must pay a docket fee of P257,810.49.

Issue:
Whether or not the court acquires jurisdiction when the correct and proper docket fee has not been paid?

Ruling:
Manchester ruling applies, with modification. Statutes regulating the procedure of courts will be construed as applicable to actions pending and undetermined at the time of their passage. Procedural laws are retrospective in that sense and in that respect.
The Court dismissed petitioner’s motion and ordered the Clerk of court to re-asses the docket fees.

Personal Observation:
The case is different in Manchester because the respondent herein has shown compliance by paying docket fees upon reassessment and has also paid the docket fees on its amended complaint increasing the claim for damages. Furthermore, there is no substantial evidence that the respondent has the intention of deliberately defraud the court or evaded the payment of docket fees.

(CLICK ON THE TITLE TO VIEW THE FULL TEXT OF THE CASE @LAWPHIL.NET)

Manchester Development Corporation vs Court of Appeals GR No. 75919 May 7, 1987

Facts:
This was originally a case of an action for torts and damages and specific performance with a prayer for temporary restraining order. The damages were not specifically stated in the prayer but the body of the complaint assessed a P78.75M damages suffered by the petitioner. The amount of docket fees paid was only P410.00. The petitioner then amended the complaint and reduced the damages to P10M only.

Issues:
When does a court acquire jurisdiction?
Does an amended complaint vest jurisdiction in the court?

Ruling:
The court acquires jurisdiction over any case only upon the payment of the prescribed docket fee. An amendment of the complaint or similar pleading will not thereby vest jurisdiction in the court, much less the payment of the docket fee based on the amounts sought in the amended pleading.

(CLICK THE TITLE OF THE CASE TO VIEW THE FULL TEXT @LAWPHIL.NET)