ARELLANO UNIVERSITY SCHOOL OF LAW

REMEDIAL LAW DEPARTMENT

MID-TERM EXAMINATION

REMEDIAL LAW REVIEW 1

CIVIL PROCEDURE

October 24, 2022 2:00 P.M – 4:00 P.M.

INSTRUCTIONS: This is a two (2) hour examination. Type your

answers after each question. Be brief and concise with your answers.
Save your answer sheet in PDF format then email to the class Google
Drive. Good Luck.

PART I
(Ten Points Each)

Gerald and Bea wanted to have the grandest wedding celebration

and thus they entered into several contracts for this purpose namely: 1.
Shang Sila Resort and Hotel, Inc. for the venue and accomodations worth
P5 Million Pesos 2. Shang Sila Catering Services Inc. for food and
beverages worth P3 Million Pesos 3. Karilagan Nuptial Services, Inc for
the wedding preparations and reception services worth P1 Million Pesos 4.
Photosphere Inc. for audio and video coverage worth P1.5 Million Pesos
5. Shisheido Salon for the hair and make-up of the entourage worth P1
Million Pesos and 5. Ms. Toni Donzala over payment worth P 500
Thousand Pesos as reception host.

Seven days before the event the couple contracted Covid 19 virus and
was forced to cancel the event due to health and safety reasons. They
demanded a refund of all payments made but the parties concerned turned
it down and insisted that the payment has been forfeited.

If the couple will institute civil actions to recover their money identify
which court shall have jurisdiction over the different cases.
 The RTC shall have the jurisdiction over the different cases.

While it is true that the first level court has the jurisdiction over
money claims not exceeding the amount of 2 million pesos, the RTC can
still exercise jurisdiction over money claims less than 2 million if Gerald
and Bea will opt to consolidate the claims in one action.

If Bea and Gerald, will file the action for money claims with the
RTC including the claims against the respondents in the amount not
exceeding 2 million pesos, the court can exercise jurisdiction over the
case without violating the rules on court jurisdiction. It is only proper for
the RTC to try even the money claims not exceeding 2 million pesos
since it is in the interest of justice and expediency of the case, that all of
the money claims of the same plaintiff be tried in one court.

II

Angela and Angelo Curtis filed an action for specific performance

against Spouses Meghan and William Scott praying for the execution of a
deed of absolute sale, delivery of the title and other pertinent documents
and the parcel of land. The title to the land was still in the name of the
Carmella Realty, Inc. The buyers impleaded the developer as an
indispensable party. The latter moved to dismiss the case on the ground
of lack of cause of action alleging that the sale of the land has long been
consummated with the sellers but the latter has not transferred the title to
their name. Hence there is no privity of the developer to the case.

a. Is the motion procedurally tenable under the amended Rules of Court?

Yes. The motion is tenable.

A motion to dismiss on the ground of lack of cause of action is
allowed under the Rules of Court.The respondent is allowed to file a
motion to dismiss for the failure of the plaintiff to tender a cause of action
against the former. Rule 9 section 1 of the Rules of Court provides that a
motion to dismiss is proper if one of the grounds is the failure of the
plaintiff to have a cause of action against the respondent.

The instant case is one of the circumstances in which before

judgment, there is a valid dismissal on the merits of the case.
b. Is the developer considered as an indispensable party to the case?

Yes. The developer is an indispensable party.

An indispensable party is defined as the party to which if not

impleaded will not result in the finality of judgment since complete relief
cannot be availed. Indispensable parties not impleaded will result to the
nullity of th judgmennt.

In the case at bar, the developer is an indispensable party. Since

title to the land is still in the name of the developer, it is indispensable
that they should be impleaded to determine the propriety of the case.
Since the title is still in the name of the developer, it is presumed that the
ownnership over the subject property is still theirs. Since, the subject of
the case involved conveyance of property, the party who has ownership
over the case is an indispensable party. If the developer will not be
impleaded, it cannot be determined if there is a valid of sale between the
spouses.

III

Rhodora a resident of Pasay filed a petition for judicial partition

of a 25 hectare tract of land located in Santa Cruz, Zambales. She sued
her two brothers Jose Mari and Jose Antonio, local residents as
defendants but she did not implead Rebecca who is currently working as
a nurse in the Germany but residing in Unit 888 Strata Condominium,
Pasong Tamo, Makati City and Rossana being Australian citizen and
permanently living in Perth. His brothers reside at Units 888 and 1888
SMDC Senses Condominium, Pasay City. When the sheriff tried to serve
the summon the security guard at the lobby prevented the latter from
entering due to privacy concerns.

a. What procedural remedies are available to cause the service of the

summons to her brothers?

The service of summons can be done through substituted service.

 Under the Rules of Court, if after the Sheriff made it known to the
security guard of a condominium building his authority and purpose and
still prevented entry, the service of summons can be done through
substituted service. The summons shall be served to the chief officer of
the security guards or other person authorized to receive summons in
such building. The service of the summons to the chief officer of the
security guards of the building has the effect of substituted service
allowed by the court.
In addition, the plaintiff can also ask the consent of the court if the
service of summons can be done through electronic mail. If allowed by
the court, the summons may be sent to the electronic mail of the
respondent.

b. Given the indispensable presence of the two sisters in the case how can
Rebecca and Rosanna be brought within the jurisdiction of the court
given their whereabouts?

Rebecca and Rosanna can be brought within the jurisdiction of the

court through service of summons. But since they are abroad, substituted
and extra-territorial service of summons will be availed of.

For Rebecca, since she is a Filipino citizen temporarily abroad,

summons can be served through substituted service. For instance, the
summons can be served to her last well known address and residence
which is in Pasong Tamo. The rules on substituted service will be
observed. In the case of Rosanna, since she is an Australian Citizen living
abroad, extra-territorial service of summons will be availed of.

IV

Grace filed a complaint against Jeanette in the RTC in Paranaque

City to collect P1,500,000.00, an amount representing the unpaid balance
on the price of the car the latter had bought. Realizing no demand to pay
was made prior to filing the complaint in court, Grace filed a notice of
dismissal before the Summons was served to the buyer. The RTC issued
an order confirming the dismissal without prejudice.

Two months later, Grace filed another complaint against the same
buyer based on the same cause of action this time in the RTC of Makati
City. However, Jeanette filed a Motion to Dismiss the case for lack of
jurisdiction over the subject matter. The court dismissed the second case
without prejudice.

A month later, Grace refiled the same complaint against Jeanette

this time with the Metropolitan Trial Court of Paranaque.

CanJeanette successfully invoke the Two-Dismissal Rule to bar

Grace’s third complaint?

No. Jeanette cannot invoke the Two-Dismissal Rule.

The Two-Dismissal Rule is applicable if the dismissals were at the

instance of the plaintiff and not of the respondent. The two-dismissal rule
is considered as a dismissal based on the merits of the case and will exist
if the plaintiff moved for the dismissal of two cases based on the same
cause of action.

In this case, the dismissal of the two cases are initiated by the
defendant. The dismissal was not caused by the own initiative of Grace.
Furthermore, Jeanette cannot invoke the two-dismissal rule since the
dismissal of the court is also without prejudice.

A Motion to Dismiss the Permissive Counter Claim filed by you as

Plaintiff's counsel sent through registered mail to the Defendant’s address
and his counsel are being sent back to your office with a notation from
the Post Master “RTS – Addressee Unknown”.

As counsel for the Plaintiff state the procedure to ensure that the
motion is properly served to the Defendant?

Under the Rules of Court, if after the failure of three attempts for 3
continuous days, the party serving the summons is entitled to substituted
service.

In this case, since it is only the first failed attempt of service of

summons, we can still try other modes of service of summons such as
personal service. Only after the 3 attempts have failed, we can resort to
subsituted service of summons. Also, we can ask for the consent of the
court to allows as to deliver the summons through electrononic means by
sending the summons to the email address of the respondent.
VI

Sofronio Marquez four months after his return to the country

learned that her estranged spouse Perfecta filed a Petition for Declaration
of Nullity of Marriage under Art. 36 of the Family Code. He wants to
oppose the petition and sought legal advice on the action to make. 1. Will
a Default Order prejudice his standing in court? 2. Can he still file a
responsive pleading to present his defenses? If Yes state the procedure to
follow for this purpose.

1. No. A default order is not applicable in actions involving the

declaration of nullity of marriage or annulment.

In this case, Marquez cannot be declared in default by the court

pursuant to Rule 9 of the Rules of Court. Even if there is a default
order, the same is null and void since it violates the provisions of
the Rules of Court regarding the inapplicability of default order in
nullity of marriage cases.

2. Yes. Marquez can still file his responsive pleading.

Sofronio Marquez should file a motion to court to allow the

extension for the filing of the answer. The motion shall be for good cause
and must show the reason why there is delay in the filing of the answer.
Since, Marquez cannot be declared in default, he may still file his answer
by filing a motion requesting and notifying the court that the answer of
the respondent even beyond the period allowed to file an answer will still
be submitted.

VII

Evangeline Sapara an employee of Santa Rural Bank, Inc. was

subpoenaed by the counsel of Procopio Ferrandes, Plaintiff in a case for
damages against the bank for alleged un-authorized withdrawal from his
account. The employee refused to honor the subpoena due to being an
employee of the Defendant and imminent loss of employment. What
discoverable remedies are avail to make the employee testify in court?
It depends on the position of Evangeline Sapara on the bank. If
Evangeline Sapara is holding a position of officer, the plaintiff can make
use of deposition and use it to the adverse party.Evangeline as the officer
of the bank can be compelled to give her deposition that can be used by
the plaintiff during trial against the adverse party.
If Evangeline is a mere employee and not an officer, the plaintiff
cannot compel Sapara to testify in court through discoverable remedies
since the case does not fall under the three circumstances to which
depositions can be availed of.

Write True or False after each question

(No need to explain)
1 POINT PER NUMBER.

1. A motion for extension of time to file answer to a third party complaint

is a litigious . FALSE

2. The MTC can entertain and award any counterclaim for an amount of

claim higher than its jurisdiction in an action for sum of money. FALSE

3. The denial of affirmative defenses may be rectified via Rule 65.

FALSE

4. Dismissal due to lack of jurisdiction can be corrected by an amendment

of the Complaint. TRUE

5. A Motion to Dismiss is a non-responsive act of the Defendant. FALSE

6. A Defendant shall be entitled to a fresh period after receipt of the

compliance by the Plaintiff of a Bill of Particulars. FALSE

7. A Defendant declared in default is no longer entitled to receive Notices,

Orders, Resolution from the court. FALSE

8. Filing of an Answer is submission to the jurisdiction of the court.

FALSE

9. Summons served upon the Executive Secretary of a corporation is a

valid mode of acquiring jurisdiction over a foreign corporation doing

business in the country. FALSE

10. Venue can be changed by the parties during the pendency of the case

by mutual consent and approval of the court. TRUE

11. “I personally do not know the Plaintiff” is an affirmative defense.

FALSE

12. The dismissal of the complaint due to prescription of the action

carries the dismissal of any compulsory or permissive counter-claim.

TRUE

13. An 18 year old lessee of an apartment can received the summons

against the landlord. TRUE

14. There is a party called “an unwilling co-defendant”. FALSE

15. The transfer of cases from different court levels to a single Regional

Trial Court is called “converging jurisdiction”. TRUE

16. Under the epistolary jurisdiction, a party to case need not be the real

party in interest as defined under the Rules of Court. FALSE

17. The residual prerogative of a court allows it to immediately dismiss a

case. FALSE
18. Failure to pay the full Docket fees to a case does not affect the

jurisdiction of a court as any balance can be a lien to the judgment of the

court. FALSE

19. On his/her own the counsel for the plaintiff may personally serve the

summons to the defendant. TRUE

20. Extra-territorial service of summons pertains only to cases that are in

personam in character. FALSE

21. A single failed attempt to serve summons to the Defendant will allow

the sheriff to avail of substituted service of summons. FALSE

22. Partial judgment can be rendered by the court at any stage of the

proceedings. TRUE

23. Judgment of the pleadings allows the court to decide the case based

only on the primary pleadings and annexes submitted by the parties.

TRUE

24. A second motion for reconsideration based on a different ground but

already available in the first motion is allowed by the rules. FALSE

25. A new trial allows the court to receive additional evidence of a party

that were omitted during the trial. FALSE

26. A notice of lis pendens maybe ordered to be annotated by a court on a

title even if the land is outside its territorial jurisdiction. TRUE

27. A Defendant who fails to appear during the Pre-Trial shall be deemed

non-suited and can be declared in default. TRUE

28. Court-Annexed Mediation is an indispensable process in a case

outside the National Capital Judicial Region. FALSE

29. The results of a Physical and Mental Examination under Rule 28 shall

be exempt from the privilege communication exclusionary rule. FALSE

30. The deposition of a witness binds the party making such deposition.

FALSE

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