Civil Procedure - Finals

Reconstituted some of the questions in my Civil Procedure Finals under Atty. HMB. 17 October 2009.

1. What is the doctrine of primary jurisdiction?

2. Dante purchased a condominium unit from Mystica Corporation at P11 million. He paid 50% of the price on the condition that on or before 10 January 2009, the condominium shall be fit for occupancy. When Dante came to the Philippines on 15 January 2009, he found that the place has not even been started yet. He filed a case for specific performance and damages against Mystica Corporation before the Regional Trial Court, which rendered judgment in favor of Dante On Appeal, Mystica Corporation contend that the RTC had no jurisdiction because P.D. 957 has specifically vested the same with the HLURB.

(a) Rule on the contention of Dante.
(b) Suppose the appeal was denied, will a certiorari lie?
(c) [another question which I forgot]

3. When is LEAVE OF COURT necessary, and what are the effects if not obtained?

(a) Amendment
(b) Bill of Particulars
(c) Demurrer
(d) Intervention
(e) Deposition pending action

4. Q filed a case for collection of sum of money against "X', "Y" and "Z" for P250,000, P300,000 and P400,000 respectively, at RTC Quezon City. X is an incompetent living with his mother at San Fernando, La Union. Y is a partnership, whose partners have different offices at Makati City. And Z is a foreign corporation doing business in the Philippines without license.

(a) Can there be joinder of parties?
(b) To whom can summonses be served on "X", "Y" and "Z"?
(c) When should they file their respective answers?

5. [forgot the bloody question]

6. KKK attached a parcel of land owned by XXX to answer for his debt. Upon favorable judgment, KKK moved to execute on the attached properties.

(a) In case the property is insufficient, what can XXX do?
(b) [forgot the bloody question]
(c) What are the other remedies of XXX?

7. Distinguish quo warranto under Rule 66 and under the Omnibus Election Code.

8. Defendant filed a motion for leave of court to file a demurrer to the evidence but was denied. The defendant nevertheless filed a demurrer which was granted. On appeal, the demurrer was dismissed by the appellate court and remanded the case to the court a quo for further proceedings. Defendant presented evidence. The court ruled in favor of the defendant, which became final and executory. The plaintiff moved for new trial on the ground of mistake and excusable negligence. Rule on the contention of the plaintiff.

9. A foreclosed the property of B. The court issued the Order of Confirmation, which B questioned in his motion for reconsideration. C, the second mortgagee, sought to redeem the property. The court granted the same based on equity of redemption. Is the court correct?

10. Plaintiff filed a case of unlawful detainer against the defendants. The court ruled in favor of the plaintiff. However, the appeal was perfected and a supersedeas bond was posted. On appeal, the plaintiff sought the issuance of a writ of preliminary mandatory injunction to restore him in possession of the property. Defendants opposed on the grounds that the appellate court has no jurisdiction to issue injunctive reliefs.

(a) Does the appellate court have the power to issue injunctive reliefs?
(b) Suppose the judgment was in favor of the defendant, would your answer be the same?
(c) Suppose the defendant refuses to vacate the property, can he be held liable for contempt?

11. Distinguish direct from indirect contempt.

Civil Procedure - Midterms

These are the reconstituted questions for our Midterm Examinations under Atty. HMB.

1. Explain "Jurisdiction is confered by law but is determined by the assertions in the pleading."
2. Jose, a Police Chief Inspector, was conducting surveillance operations at the Pegasus Night Club. On such occasion, he killed someone. He was subsequently charged with Homicide at the Regional Trial Court of Quezon City. After the prosecution rested its case, Jose moved to dismiss the case, contending that it is the Sandiganbayan that has jurisdiction over his case. The RTC ordered the records of the case be forwarded to the Sandiganbayan. The Sandiganbayan did not take cognizance of the case, and remanded it back to the RTC. Was the Sandiganbayan correct?
3. A building inside the "Pamilihang Sentral ng Sta. Mesa" is said to be owned by VCF Enterprises and is rented out to stallholders. Five stallholders of the building found evidence that proves VCF's Title No. 133576, issued by the Register of Deeds of Manila is spurious, questionable and doubtful. In behalf of all stallholders, the five instituted a class suit for cancellation of the title and damages. Is the complaint proper?
4. Ric Bonto entered into three different contracts with Mario (contract of lease), Lirio (contract of mortgage) and Augusto (contract of sale) involving the same parcel of land in Sampaloc, Manila. All violated the terms of their respective agreements. Can Ric Bonto institute a single complaint for all three?
5. Distinguish Primary Jurisdiction from Residual Jurisdiction.
6. Manuel filed a case to compel Doña Trinidad to transfer to him a parcel of land. The trial court ruled in favor of Manuel. The defendant appealed to the Court of Appeals. While on appeal, Doña Trinidad died. The heirs actively pursued the appeal without any formal substitution of parties. The CA affirmed the decision of the trial court. The heirs filed a petition before the Supreme Court claiming that the CA did not acquire jurisdiction on the person of the heirs because there was no formal substitution. (a) Will the petition prosper? (b) Suppose the property was transferred to a third person pendente lite, would the answer be the same?
7. Juan dela Cruz filed a case against Y Company at the Regional Trial Court of San Pablo City. He would like to take the deposition of Pedro Santos, a resident of Lucena City and employee of Y Company, because he was not able to secure a subpoena for him. Pedro refused to give his deposition. Even when the RTC have already issued a subpoena for him, he still refused to appear before the court. (a) What sanctions may be imposed upon Pedro Santos? (b) Suppose his deposition was taken and introduced in part, by the adverse party. May he be considered as his witness?
8. What are the requirements for genuiness and due execution of actionable documents?
9. Monark Corporation filed a case against Asian Construction for collection of sum of money due to the non payment of rentals for leased equipments owned by Monark. Asian Construction moved for leave of court to file Third Party Complaint against Bechtel Company, because it is latter that actually used the leased equipments and did not pay Asian Construction for the use. The Regional Trial Court denied the motion of Asian Construction. (a) Is the RTC correct in dismissing the motion for the filing of a Third Party Complaint? (b) According to the case, what are the requisites for a Third Party Complaint?
10. Jose's brand new Toyota Altis, parked along Batasan Road, Quezon City, was hit by a wayward Izuzu Crosswind. He then filed a case for damages at the Regional Trial Court of Quezon City against: "A", the driver of the Crosswind, who is a resident of Batangas City; "B" the owner of the Crosswind, who is temporarily a resident of Singapore; and "C" a foreign insurance corporation without any agent in the Philippines. Summonses were validly served to them on June 5, 10, and 15, respectively. (a) When must the defendants file their answer? (b) The defendants moved to dismiss the complaint on the ground of: "A" the venue is improper; "B" the court lacks jurisdiction over the subject matter of the case; and "C" the court has not acquired jurisdiction over the person of the defendant. Rule on the defenses.
11. Crispin filed a complaint for collection of sum of money at the Regional Trial Court of Makati for P250,000. Realizing the error, Crispin moved to amend the amount by raising it to P500,000. The court dismissed the motion claiming that it cannot rule on the amendment of the pleading as it has not yet acquired jurisdiction over the case. Is the contention of the RTC valid?
12. On August 1, 2005, Atty. Pepe Santos received a notice of registered mail. Because his family went on vacation from August 4 to 11, 2005 in Bali, Indonesia, he was only able to check the mail on August 21, 2005. He found out that it is a copy of the decision against his client dated July 13, 1999. Can he still appeal the decision?

Small Claims Cases Pilot Project

Nota bene:

Check the following as guides for this post:
(A.M. No. 08-8-7-SC) Rule of Procedure for Small Claims Cases, and
(A.O. No. 141-2008) Administrative Order Designating Pilot Courts for Small Claims Cases.

Overview of the Rule

The Supreme Court, by virtue of its Constitutionally guaranteed rule-making powers under Section 5(5) of Article VIII, formulated this special rule of procedure to govern small claims cases. It provides a simple, more inexpensive and expeditious means of settling disputes involving purely money claims than the regular civil process, by allowing the plaintiff (the person suing) to sue a defendant (the person being sued) without the need of a lawyer.

According to the definition provided by the rule, small claims cases are civil claims which are exclusively for the payment or reimbursement of a sum of money not exceeding P100,000.00, and does not include interest and costs.

These claims or demands may be:

(a) For money owed under any of the following:

1. Contract of Lease;
2. Contract of Loan;
3. Contract of Services;
4. Contract of Sale; or
5. Contract of Mortgage;

(b) For damages arising from any of the following:

1. Fault or negligence;
2. Quasi-contract; or
3. Contract;

(c) The enforcement of a barangay amicable settlement or an arbitration award involving a money claim covered by this Rule pursuant to Sec. 417 of Republic Act 7160, otherwise known as the Local Government Code of 1991.

Criminal Procedure - Finals

CRIMINAL PROCEDURE
FINAL EXAMS, OCTOBER 1O, 2008
FEU-LAW

1. Explain the Time Bar Rule (20 pts.)

2. X was charged with Homicide in the RTC of Manila. After X’s plea of Not Guilty, the Prosecution presented its evidence and formally offered its exhibits. Before admitting or objecting to the exhibits offered by the Prosecution, X moved that the case be dismissed on the ground of insufficiency of evidence. The RTC denied the Motion. Thereafter, X called his first witness to the stand. The Prosecution objected, contending that X waived his right to present evidence since he never asked leave of court to demur to the Prosecution’s evidence. Decide with reason (20 pts).

3. X was charged with Homicide before the RTC of Quezon City. Through counsel, he filed a Petition for Bail. Without conducting hearing on the Petition and without giving the Prosecution opportunity to Comment, the Judge granted bail to X after evaluating the evidence on record which tended to show that the evidence of guilt was not strong.

a. Was the procedure followed by the Judge correct? Justify.

b. Suppose X, after trial, was found guilty of murder and sentenced to reclusion perpetua and he appealed to the Supreme Court, is he entitled to bail during the pendency of his appeal? Justify.

c. Suppose X was convicted of Homicide and was sentenced to reclusion temporal and he appealed to the Court of Appeals, is he entitled to bail during the pendency of such appeal? Justify (20 pts.).

4. a. X was charged with Estafa and pleaded Not Guilty. Thereafter, the Prosecution repeatedly sought and obtained postponements over the objection of the accused. At the succeeding hearing, the Prosecution again sought postponement on the ground that its only witness was out of the Country. If you were X’s counsel, what remedy wIll you avail of to finally cause a dismissal of the case?

b. The Information filed against X charged Estafa and Falsification of Public Document. X has not yet been arraigned. As X’s lawyer, will you file a Motion to Quash or a Motion for Bill of Particulars? Justify. (20 pts.)

5. Give a flow chart of appeal in criminal cases from the MTC to the Supreme Court (20 pts.).

Alternative Dispute Resolution - Finals

Reconstituted final examination in Alternative Dispute Resolution:

I. TRUE or FALSE

1. Under the "look and sniff" doctrine, the arbitrator need not apply his expertise.
2. The parties to an arbitration asked the Regional Trial Court to refer them to arbitration as per their agreement, despite the presence of thrid party claimants to the contract.
3. American jurisprudence can be of aid to Philippine arbitral tribunals in rendering an award as to Model Law.
4.  

II. ANSWER IN NOT MORE THAN FIVE LINES.

1. A provision in the arbitral agreement states that the Regional Trial Court may modify an award if the same is not in accord with law. Valid?
2. You are the sole arbitrator. One of the parties failed to attend the preliminary conference to draft the Terms of Reference. It is undisputed that the absent party was duly notified of and was given an agenda of the topics to be decided upon. Would you proceed with the preliminary conference?
3. Article 2044 of the New Civil Code states: "Any stipulation that the arbitrators' award or decision shall be final, is valid xxx." Is it in accordance with the traditional definition of arbitration?
4. The parties agreed that the decision for the awards rendered by the arbitral tribunal need not include the reasons thereof. Is the agreement valid?

III. OBJECTIVES

1. Give at least 5 circumstances in the Model Law that allows for court interference in arbitral proceedings.
2. Distinguish consensual arbitration from statutory arbitration.

Criminal Procedure - Midterms

CRIMINALS PROCEDURE
MID-TERM EXAMS, FEU
AUG. 9, 2008

1.A. Define criminal jurisdiction of the Courts.

   B. Distinguish criminal jurisdiction from venue in criminal cases (10 pts.)

2. Explain Doctrine of Adherence of jurisdiction and illustrate (10 pts.)

3. State the rule on interruption of the period of prescription of the offense (10 pts.)

4.A. What is a crime that cannot be prosecuted de oficio;

   B. Is Defamation always a crime that cannot be prosecuted de officio? Explain (15 pts.)

5.A. An accused is charged in one Information for assaulting 3 persons by different acts while they were asleep. Is the Information duplicitous? Justify.

   B. X is charged under a single Information for having killed on the same occasion of robbery 4 persons. Is the information duplicitous? Justify (10 pts)

6. X is charged with Estafa for failure to remit to Y sums of money collected by him (X) from Y, and instead, X deposited the money in his personal bank account. X filed a Motion to Suspend the proceeding pending resolution of the civil case earlier filed by him in court against Y for accounting and damages, involving the amount subject of the Estafa case. Is there a prejudicial question? Justify (20 pts.)

7. X was convicted of serious physical injuries inflicted Y. He appealed but during the pendency of his appeal, he died.

A. What is the effect of Y's death on his criminal liability?

B. What is th effect cf his death on his civil liability based solely on his crminal act?

C. What is the effect of his death on his civil liability based on quasi-delict or tort?

D. What is the effect of his death if in the cnminal case, Y did not make necessary reservation to file separate civil action for damages?

E. What is the effect of his death if Y reserved his right to file a separate civil action but had not yet done so when X died?

Explain your answer (25 pts.)

Alternative Dispute Resolution - Midterms

ALTERNATIVE DISPUTE RESOLUTION


I. True of False: Just write down the number, then your answer. Do not include any reason or argument.

 1. Court referred mediation is not legally feasible because, once a case were filed in court, the
court can only refer the parties to court annexed mediation.

 2. Parties to a contract cannot include an ad hoc mediation clause because no viable default rule was provided by Republic Act No. 9285.

 3. Parties to a domestic contract cannot enforce an arbitration clause in their contract because, to date, the joint legislative oversight committee created by Republic Act No, 9285 has not yet issued the implementing rules and regulations and the Supreme Court has not yet issued any rule of court in the instances when courts may he involved in arbitration.

 4. The provisions of Republic Act Ng. 9285 allow contracting parties to stipulate that any dispute arising out of their contract can only be resolved through litigation as the latter term is understood under the law.

II. Instructions: Briefly explain your answers to the following questions. DO NOT USE MORE THAN FIVE LINES.

 5.  A management group disseminated a circular to its members with the following passages:

" To strongly advocate to our members to state in all contracts a clause specifying that ' in case of any dispute as a result of this contract, the case shall he referred to mediation, prior to arbitration or litigation. ' "

 If you were counsel for a member company, and assuming that you are favorably inclined to the use of ADR and arbitration in resolving disputes, would you recommend the inclusion of the clause? Why?

06. A domestic contract contains the following dispute resolution clause:

 “Any dispute arising out of this contract shall be referred to arbitration

 A dispute arose and a party made a request for arbitration. You are counsel for the respondent and your client instructed you to try to evade the arbitration clause. How will you carry out your client's instructions? Explain.


III. Discussions

 07 Discuss the concept of party autonomy in resolving private disputes between private parties.

 08. Briefly explain the steps in exercising party autonomy in the resolution of private disputes?

 09. May the exercise of party autonomy in the resolution of disputes help in solving the problems of the judiciary, particularly the latter’s docket problem? Explain.

 10. Distinguish independent consent from derivative consent. Illustrate by giving an example.

 11. Enumerate the different modes making—up the dispute resolution spectrum. Briefly discuss at least four of them.

Good luck!