Provisional Remedies

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PROVISIONAL REMEDIES

LORENZO SHIPPING CORP. v. FLORENCIO VILLARIN, 06 March 2019

Facts:

Alleging failure on the part of CASSCOR and Dajao to remit their shares Villarin and
others filed a complaint for specific performance and accunting against Casscor and
Dajao. The complaint was subsequently amended to implead LSC as a nominal
defendant; to include a prayer for a writ of preliminary attachment against CASSCOR
and Dajao; and to include a prayer for mandatory injunction against LSC. A writ of
preliminary of attachment was thereafter issued by the RTC against CASSCOR and
Dajao. Villarin filed a motion for the issuance of a writ of a preliminary attachment. The
RTC granted the motion and ordered the issuance of a writ of preliminary attachment
upon posting by Villarin of bond. LSC filed a motion for clarification/reconsideration,
arguing that it cannot be subjected to the attachment writ. However, before the court
can act on LSC’s motion, a notice of garnishment was served on LSC, prompting it to
file a motion to post a counter-bond. Hence, LSC and CASSCOR both posted counter-
bonds each, resulting in the discharge of the writ of attachment. Ruling on the motion,
the RTC issued an order clarifying that the writ of attachment issued under the order is
directed at all the defendants, including LSC. Aggrieved, LSC filed a petition for
certiorari with the CA claiming that the judge committed grave abuse of discretion in
subjecting LSC to the attachment writ since it had no contract or juridical relation with
Villarin and the other plaintiffs. The CA upheld the trial court’s decision and ruled that
the complaint contained averments which allege fraud on the part of all the defendants,
including LSC.

Issue: Whether or not CA erred in upholding the trial court’s decision.

Ruling:

Yes, the CA erred in upholding the trial court’s decision. Under the Rules, a writ of
preliminary is a provisional remedy issued upon the order of the court where an action is
pending to be levied upon the properties of the defendant therein, the same to be
upheld thereafter by the Sheriff as security for the satisfaction of whatever judgment
might be secured in said action by the attaching creditor against the defendant. Property
may be attached when a party has been guilty of fraud in contracting the debt or
incurring the obligation upon which the action is brought, or in the performance thereof.
However, the main thrust of the complaint is to compel Dajao and CASSCOR to
observe the provisions of the MOA. All the other remedies sought by the complaint are
merely ancillary to the primary relief. The MOA, therefore, is the obligation upon which
Villarin’s action is brought; hence the obligation sought to be upheld in this case is ex
contratu. Pertinently, Article 1311 of the New Civil Code provides that the contracts take
effect only between the parties, their assignes and heirs, except in case where the
rights and obligations arising from the contract not transmissible by their nature, or by
stipulation or by provision of law. In the case at bar, MOA was entered into by Dajao on
one hand, and Villarin on the other. LSC cannot be guilty of fraud within the
contemplation of Section 1(d), Rule 57 of the Rules of Court because it did not enter
into any agreement or contract within Villarin. In the absence of any assignment of
rights to LSC, the MOA can only bind the parties thereto. Not being a party to the MOA,
LSC cannot be subjected to an attachment writ on the basis of Section 1 (d).
SEVERINO A. YU v. DAVID MIRANDA, 27 March 2019

Facts:

In the complaint, Miranda alleged that Morning Star sought to establish a housing
project to be finance by the Pag-ibig through GLAD Financing Program. It entered into a
contract with Morning Star for the supply and financing of the backfilling material for the
latter’s housing project. However, it was alleged that Morning Star defaulted on its
obligation to pay Miranda. It also prayed for the issuance of preliminary attachment over
the land registered under the name of Morning Star. The RTC issued an order granting
the prayer for preliminary attachment. Consequently, a writ of preliminary attachment
was issued. Yu became aware of the civil case, they filed their motion for leave to
intervene, claiming that they have legal interest in the properties subject of the
preliminary attachment. They claimed that Morning Star is a mere nominal owner of the
subject property since they were the real owners; and that they had transferred the titles
covering the subject property to Morning Star. The RTC granted Miranda’s complaint.
The said decision eventually became final and executory. The CA dismissed the petition
of Yu even if the RTC should have allowed Yu to intervene because they are claiming
they are the real owners of the properties subject of a writ of preliminary attachment.
And the issue has already been rendered moot and academic in view of the fact that the
decision of the RTC already became final and executory.

Issue: Whether the petitioners Yu may still be allowed to intervene in the civil case
despite the unassailable fact that the said case has already been decided upon finality.

Ruling:

No, petitioners Yu may not be allowed to intervene in the civil case because the said
case has already been decided upon finality. Jurisprudence has held that a writ of
preliminary attachment is only provisional remedy issued upon order of the court where
an action is pending; it is an ancillary remedy. Attachment is only adjunct to the main
suit. Therefore, it can have no independent existence apart from a suit on a claim of the
plaintiff against the defendant. In other words, an attachment or garnishment is
generally ancillary to, and dependent on, a principal proceeding, either at law or in
equity, which has for its purpose a determination of the justice of a creditor’s demand.
Any relief against such attachment could be disposed of only in that case. Hence, with
the cessation of the civil case, with the RTC’s decision having attained the status of
finality, the attachment sought to be questioned by the petitioners Yu has legally ceased
to exist.
ALFREDO C. LIM, JR. v. SPOUSES TITO S. LAZARO, 03 July 2013

Facts:

Lim filed a complaint for sum of money with prayer for the issuance of a writ of
preliminary attachment before the RTC, seeking to recover from Lazaro the sum of
money, which represented the amounts stated in several dishonored checks issued by
the latter to the former, as well as interests, attorney’s fees and costs. The RTC granted
the writ of preliminary attachment application upon the posting of the required bond. In
their answer with counterclaim, spouses Lazaro averred, among others, that Lim had no
cause of action against them since Colim Merchandise and not Lim was the payee of
the checks and the checks were not drawn by them, but by Arcinas and Ramos,
respectively. The parties entered into a compromise agreement which was approved by
the RTC. The spouses filed an omnibus motion seeking to lift the writ of preliminary
attachment annotated on the subject TCTs, which the RTC granted. The CA rendered
the assailed decision, finding no grave abuse of discretion on the RTCs part.

Issue: Whether or not the writ of preliminary attachment was properly lifted.

Ruling:

No, the discharge of the writ of preliminary attachment was improper. By its nature,
preliminary attachment, under Rule 57 of the Rules of Court, is an ancillary remedy
applied not for its own sake but to enable the attaching party to realize upon the relief
sought and expected to be granted in the main principal action; it is a measure auxiliary
or incidental to the main action. As such, it is available during its pendency which may
be resorted to by litigant to preserve and protect certain rights and interests during the
interim, awaiting the ultimate effect of a final judgment in the case. In addition,
attachment is also availed of in order to acquire jurisdiction over the action by actual or
constructive seizure of the property in those instances where the personal or substituted
service of summons on the defendant cannot be effected. In this relation, while the
provisions of Rule 57 are silent on the length of time within which an attachment lien
shall continue to subsist after the rendition of the final judgment, jurisprudence dictates
that the said lied continues until the debt is paid, or the sale is had under execution
issued on the judgment or until the judgment is satisfied, or the attachment discharged
or vacated in the same manner provided by law. In the case of Garcia, it admits of
peculiar character in the sense that it involve a compromise agreement. Nonetheless,
the parties to the compromise agreement should not be deprived of the protection
provided by an attachment lien especially in an instance where on reneges on his
obligations under the agreement. It would in effect create a back door by which a debtor
can easily escape his creditors. Consequently, we would be faced with an anomalous
situation where a debtor, in order to buy time to dispose of his properties, would enter
into a compromise agreement he has no intention of honoring in the first place. The
purpose of the provisional remedy of attachment would thus be lost. The court holds
that the writ of preliminary attachment subject of this case should be restored and its
annotation revived in the subject TCTs, re-vesting unto Lim, Jr. his preferential lien over
the properties covered by the same as it were before the cancellation of the said writ.
UCPB v. CHRISTOPHER LUMBO, 11 December 2013

Facts:

Upon failure to settle the obligation, UCPB applied for the extrajudicial foreclosure of the
mortgage, and emerged as the highest bidder at the ensuing foreclosure sale. The
certificate of sale was issued on the same day, and UCPB registered the sale in its
name. The title over the mortgage property was consolidated in the name of UCPB after
the respondents failed to redeem within the redemption period. The respondents
brought against UCPB in the RTC an action for the annulment of the foreclosure, legal
accounting, injunction against the consolidation of title, and damages. During the
pendency of the civil case, UCPB filed an ex parte petition for the issuance of writ of
possession to recover possession of the property. The RTC granted the ex parte
petition of UCPB, and issued the writ of possession directing the sheriff to place UCPB
in the actual possession of the property. Although the possession of the property was
turned over to UCPB on they were allowed to temporarily remain on the property for
humanitarian reasons. The respondents filed in the RTC handling the special
proceedings a petition to cancel the writ of possession and to set aside the foreclosure
sale. They included an application for writ of preliminary injunction and temporary
restraining order to prevent the implementation of the writ of possession. The CA
granted the respondents’ petition, setting aside the assailed orders, and enjoining the
RTC from implementing the writ of possession pending the final disposition of the
petition for its cancellation and the annulment of the foreclosure sale.

Issue: Whether or not the CA erred in granting the respondents petition for certiorari
and enjoined the implementation of the writ of possession issued by the RTC.

Ruling:

Yes, the CA erred in granting the respondents petition for certiorari and enjoining the
implementation of the writ of possession issued by the RTC. A preliminary injunction is
an order granted at any stage of an action or proceeding prior to the judgment or final
order requiring a party or a court, an agency, or a person to refrain from a particular act
or acts. It may also require the performance of a particular act or acts, in which case it is
known as a preliminary mandatory injunction. Thus, a prohibitory injunction is one that
commands a party from doing a particular act, while a mandatory injunction commands
the performance of some positive act to correct a wrong in the past. Under the Rules,
the issuance of writ of preliminary injunction may be justified. A right in is in esse if it
exists in fact. In the case of injunction, the right sought to be protected should at least
be shown to exist prima facie. Unless such showing is made, the applicant is not
entitled to an injunctive relief. However, the respondents made no such showing of their
holding a right in esse. They could not do so simply because their non-redemption
within the period of redemption had lost for them any right in the property, including its
possession. Hence, CA erred in granting the petition of the respondents and in enjoining
the writ of preliminary injunction issued by the RTC.
PURISIMO BUYCO v. NELSON BARAQUIA, 21 December 2009

Facts:

The RTC granted respondent’s application for preliminary injunction. By decision, the
trial court dismissed respondent’s complaint for failure to establish the concurrence of
the essential requisites for the establishment of an easement of right of way under
Articles 649 and 750 of the Civil Code. It accordingly lifted the writ of preliminary
injunction. Respondent later filed with the trial court a motion to cite petitioner and his
brother in contempt, alleging that they had closed off the subject road, thus violating the
writ of preliminary injunction. The trial court, by resolution, held that the decision had not
yet become final executory, hence, the writ of preliminary injunction remained to be
valid, efficacious and obligatory, rendering petitioner’s act of closing the road an indirect
contempt of court. It thus declared petitioner and his brother in contempt of court.
However, the decision was set aside and granted petitioner’s motion for
reconsideration, ruling that petitioner and his brother cannot be held in contempt of
court by mere motion and not by verified petition. The CA annulled the grant of
preliminary injunction in favor of petitioners has not yet become final.

Issue: Whether the lifting of a writ of preliminary injunction due to the dismissal of the
complaint is immediately executory, even if the dismissal of the complaint is pending
appeal.

Ruling:

Yes, the lifting of a writ of preliminary injunction due to the dismissal of the complaint is
immediately executory. A writ of preliminary injunction is an order granted at any stage
of an action or proceeding prior to the judgment or final order, requiring a party or a
court, agency or a person to refrain from a particular act or acts. It is merely a
provisional remedy, adjunct to the main case subject to the latter’s outcome. It is not a
cause of action in itself. Being an ancillary or auxiliary remedy, it is available during the
pendency of the action which may be resorted to by a litigant to preserve and protect
certain rights and interests therein pending rendition, and for purposes of the ultimate
effects, of a final judgment in the case. It is well settled that the sole object of a
preliminary injunction, whether prohibitory or mandatory, is to preserve the status quo
until the merits of the case can be heard. It is usually granted when it is made to appear
that there is a substantial controversy between the parties and one of them is
committing an act or threatening the immediate commission of an act that will cause
irreparable injury or destroy the status quo of the controversy before a full hearing can
be had on the merits of the case. In the case at bar, the writ of preliminary injunction
was granted by the lower court upon respondent’s showing that he and his poultry
business would be injured by the closure of the subject road. After the trial, however,
the lower court found that respondent was not entitled to the easement of right of way
prayed for, having failed to prove the essential requisites for such entitlement, hence,
the writ was lifted.
SPOUSES DEO AGNEAR v. BPI FAMILY SAVINGS BANK, INC., 03 June 2013

Facts:

The spouses Agner executed a promissory note with chattel mortgage in favor of
Citimotors. Citimotors assigned all its rights, title and interests to ABN which likewise
assigned the same to BPI. For failure to pay four successive installments, respondent,
through counsel, sent to petitioners a demand letter, declaring the entire obligation as
due and demandable and requiring to pay or surrender the mortgaged vehicle
immediately upon receiving the letter. As the demand was left unheeded, respondent
filed an action for replevin and damages before the RTC. The RTC ruled for the
respondent and ordered petitioners to jointly and severally pay the amount plus
interests until fully paid, and the costs of suit. The CA affirmed the lower’s court decision
and, subsequently, denied the motion for reconsideration; hence the petition. Petitioners
argued that respondent’s remedy of resorting to both actions of replevin and collection
of sum of money is contrary to the provisions of Article 1484 Civil Code.

Issue: Whether or not the CA erred in affirming the lower court’s decision.

Ruling:

No, the CA did not err in affirming the lower court’s decision. The Supreme Court has
held that prior demand is not a condition precedent to an action for writ of replevin,
since there is nothing in the Rules that requires the applicant to make a demand on the
possessor of the property an action for writ of replevin could be filed. Records bear that
both verbal and written demands were in fact made by respondent prior to the institution
of the case against petitioners. The remedies provided for in Art. 1484 are alternative,
not cumulative. The exercise of one bars the exercise of the others. This limitation
applies to contracts purporting to be leases of personal property with option to buy by
virtue of Art. 1485. Compared with Elisco, the vehicle subject matter of this case was
never recovered and delivered to respondent despite the issuance of writ of replevin. As
there was not seizure that transpired, it cannot be said that petitioners were deprived of
the use and enjoyment of the mortgaged vehicle or that respondent pursued,
commenced or concluded its actual foreclosure. The trial court, therefore, rightfully
granted the alternative prayer for sum of money, which is equivalent to the remedy of
exacting fulfillment of the obligation. Certainly, there is no double recovery of unjust
enrichment to speak of. Hence, the CA did not err in affirming the lower court’s decision.
RICARDO CUARTERO v. COURT OF APPEALS, 05 August 1992

Facts:

The lower court issued an order granting the ex parte the petitioner’s prayer for the
issuance of a writ of preliminary attachment. The writ of preliminary attachment was
issued pursuant to the trial court’s order. On the same day, the summons for the
spouses Evangelista was likewise prepared. Spouses Evangelista filed a motion to set
aside the order and discharge the writ of preliminary attachment for having been
irregularly and improperly issued. The lower court denied the motion for lack of merit.
The CA resolved not to grant the prayer for restraining order or writ of preliminary
injunction, there being no clear showing that spouses Evangelista were entitled thereto.

Issue: Whether or not the CA erred and committed a grave abuse of discretion
amounting to lack of jurisdiction when it held that the RTC did not acquire jurisdiction
over respondent spouses.

Ruling:

Yes, the CA committed grave abuse of discretion when it held that the RTC did not
acquire jurisdiction over the respondent spouses. A writ of preliminary attachment is
defined as a provisional remedy issued upon order of the court where an action is
pending to be levied upon the property of the defendant therein, the same to be held
thereafter by the sheriff as security for the satisfaction of whatever judgment might be
secured in said action by the attaching creditor against the defendant. Under the Rules,
the only requisites for the issuance of the writ are the affidavit and bond of the applicant.
As has been held, no notice to the adverse party or hearing of the application is
required inasmuch as the time which the hearing will take could be enough to enable
the defendant to abscond or dispose of his property before a writ of attachment issues.
In such a case, a hearing would render nugatory the purpose of this provisional remedy.
The ruling remains good law. There is, thus, no merit in the private respondent’s claim
of violation of their constitutionally guaranteed right to due process. The writ of
preliminary attachment can be applied for and granted at the commencement of the
action or at any time thereafter.
BICOL MEDICAL CENTER v. NOE B. BOTOR, 04 October 2017

Facts:

The BMC issued hospital memorandum which ordered the rerouting of traffic inside the
BMC compound. This rerouting scheme closed the steel gate for vehicles and
pedestrians. The relocation of this gate was implemented for security reasons and to
make way for massive development within the complex. The gate closure drew a lot of
criticism from the community and Atty. Noe wrote to Naga City Mayor, asking for the
reopening or dismantling of the gate for being a public nuisance. The SP passed a
resolution authorizing the Mayor to dismantle the gate. However, instead of dismantling
it, the Mayor filed a verified petition with a prayer of writ of preliminary injunction against
BMC. The RTC denied the application for injunctive relief, ruling that Naga City failed to
prove a clear and unmistakable right to the writ prayed for. Only the intervenors filed a
petition for certiorari before the CA. The CA concluded that Naga City and the
intervenors were able to present prima facie evidence of their right to the writ. However,
the CA pointed out that whether or not the revised assessor’s tax mapping control and
its identification map, which support the intervenor’s assertion of the public nature of
Road Lot No. 3.

Issue: Whether or not the CA erred in directing the RTC to issue a writ of preliminary
injunction on the closure of Road Lot No. 3.

Ruling:

Yes, the CA erred in directing the RTC to issue a writ of preliminary injunction on the
closure of Road Lot No. 3. A writ of preliminary injunction is an ancillary and
interlocutory order issued as a result of an impartial determination of the context of both
parties. A writ of preliminary injunction is issued to preserve the status quo ante, upon
the applicant’s showing of two important requisite conditions, namely: the right to be
protected exists prima facie, and the acts sought to be enjoined are violative of that
right. It must be proven that the violation sought to be prevented would cause an
irreparable injustice. In satisfying these requisites, the applicant for the writ need not
substantiate his or her claim with complete and conclusive evidence since only prima
facie evidence or a sampling is required to give the court an idea of the justification for
the preliminary injunction pending the decision of the case on the merits. Here, the
respondents failed to establish prima facie proof of their clear legal right to utilize Road
Lot No. 3. Whatever right they sought to establish by proving the public nature of the lot
was rebutted by the DOH’s certificate of title and the city engineer’s categorical
statement that the road up to the entrance and exit gate of BMC was not included in the
list of city roads. Hence, the CA erred in directing the RTC to issue writ of preliminary
injunction.

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