assignment - specpro

8/12/2019 Assignment - Specpro

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ASSIGNMENT

What is an ordinary civil action?

Sec. 1, ROC. Ordinary civil actions, basis of.Every ordinary civil action must be based on a cause of

action.

Civil Actionone by which a party sues another for the enforcement or protection of a right or the

prevention or redress of a wrong

Governed by ordinary rules Formal demand of ones legal rights in a court of justice in the manner prescribed by the court

or by the law.

What is a special civil action?

Also governed by ordinary rules but SUBJECT to specific rules prescribed (Rules 62 to 71) Special features not found in ordinary civil actions

Ordinary civil actions versus special civil actions

(1) Although both types of actions are governed by the rules for ordinary civil actions, there are

certain rules that are applicable only to specific special civil actions (Sec. 3[a], Rule 1). The fact that an

action is subject to special rules other than those applicable to ordinary civil actions is what makes a civil

action special.

(2) An ordinary civil action must be based on a cause of action (Sec. 1, Rule 2). This means that the

defendant must have performed an act or omitted to do an act in violation of the rights of another (Sec.

2, Rule 2). These definitions do not fit the requirements of a cause of action in certain special civilactions. The cause of action as defined and required of an ordinary civil action finds no application to the

special civil action of declaratory relief. In finds no application also in a complaint for interpleader. In this

action, the plaintiff may file a complaint even if he has sustained no actual transgression of his rights. In

fact, he actually has no interest in the subject matter of the action. This is not so in an ordinary civil

action.

(3) Ordinary civil actions may be filed initially in either the MTC of the RTC depending upon the

jurisdictional amount or the nature of the action involved. On the other hand, there are special civil

actions which can only be filed in an MTC like the actions for forcible entry and unlawful detainer. There

are also special civil actions which cannot be commenced in the MTC, foremost of which are the

petitions for certiorari, prohibition, and mandamus.

(4) The venue in ordinary civil actions is determined by either the residence of the parties where the

action is personal or by the location of the property where the action is real. This dichotomy does not

always apply to a special civil action. For instance, the venue in a petition for quo warranto iw where the

Supreme Court or the Court of Appeals sits if the petition is commenced in any of these courts and

without taking into consideration where the parties reside. It is only when the petition is lodged with the

RTC that the residence is considered in venue analysis. While in ordinary civil actions the residences of

both the plaintiff and the defendant are factored in the determination, a petition for quo warranto


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failed in the RTC merely looks into the residence of the respondent, not that of the petitioner. But if it is

the Solicitor General who commences the action, another special rule is followed because the petition

may only be commenced in the RTC in Manila, in the Court of Appeals or in the Supreme Court.

(5) While ordinary civil actions when filed are denominated as complaints, some special civil actions

are not denominated as such but petitions.

How many and name each special civil action in the rules of court?

(a) Special civil actions initiated by filing of a Petition:

Declaratory relief other than similar remediesRule 63

Review of adjudication of the COMELEC and COARule 64

Certiorari, prohibition and mandamusRule 65

Quo warrantoRule 66

ContemptRule 71

(b) Special civil actions initiated by filing of a Complaint:

InterpleaderRule 62

ExpropriationRule 67

Foreclosure of real estate mortgage - 68

PartitionRule 69

Forcible entry and unlawful detainerRule 70

What is a provisional remedy?

Provisional remedies are temporary, auxiliary, and ancillary remedies available to a litigant for the

protection and preservation of his rights while the main action is pending. They are writs and processeswhich are not main actions and they presuppose the existence of a principal action (Riano).

Purpose: Provisional remedies are resorted to by litigants for any of the following reasons:

1. To preserve or protect the rights or interests of litigants while the main action is pending;2. To secure the judgment;3. To preserve the status quo; and4. To preserve the subject matter of the action.

What are the different provisional remedies under the Rules of Court?

The FOLLOWING are the provisional remedies provided for in the Rules of Court:

1. Preliminary Attachment (rule 57)2. Preliminary Injunction (Rule 58)3. Receivership (Rule 59)4. Replevin (Rule 60)5. Support Pendente Lite (Rule 61)


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Note: The enumeration above is NOT exclusive. For example, in the special proceeding of custody of

minors, the court may grant a parent visitation rights and/or temporary custody of the child.

Other Provisional Remedies:

A. Issued by a family court1. Temporary Custody of Minor Children2. Order allowing Visitation Rights of Parents

B. Interim Reliefs in a Petition for a Writ of Amparo1. Temporary Protection Order2. Inspection Order3. Production Order4. Witness Protection Order

P.D. 1818 prohibits the issuance of injunctive writs not only against government entitites but also

against any person or entity involved in the execution, implementation, and operation of government

infrastructure projects.

JURISDICTION

The court which grants or issues a provisional remedy is the court which has jurisdiction overthe main action.

Inferior courts may also grant all appropriate provisional remedies in an action pending with itand is within its jurisdiction.

Rules governing Appeal in the Rules of Court, cite each

Three Modes of Appeal:

1. Ordinary Appeal (Rule 40 and 41)a. Notice of appealb. Record on appeal

2. Petition for Review (Rule 42)3. Appeal by Certiorari (Rule 45)

Rule 43Appeals from the CTA and the Quasi-Judicial Agnecies to the CA

Rule 44Ordinary Appealed Cases

Difference between Petition for Certiorari and Petition for Review on Certiorari

Petition for Certiorari (Rule 65) Petition for review on certiorari (Rule 45)

Petition is based on questions of jurisdiction Petition is based on questions of law

It is a mode of review. It is a mode of appeal

Directed against an interlocutory order of the

court or where there is no appeal or any other

plain, speedy or adequate remedy.

Involves the review of the judgment award or final

order on the merits.

Filed not later than 60 days from notice of

judgment, order or resolution sought to be

reviewed.

Filed within 15 days from notice of judgment, final

order or resolution appealed from.


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Unless a writ of preliminary injunction or

temporary restraining order is issued, does not

stay the challenged proceeding.

Stays the judgment or order appealed from.

The judge, court, quasi-judicial agency, tribunal,

corporation, board, officer or person shall be

public respondents who are impleaded in the

action.

The appellant and the appellee are the original

parties to the action, and the lower court or quasi-

judicial agency is not impleaded.

Motion for reconsideration or for new trial is

required; if a motion for reconsideration or new

trial is filed, the period shall not only be

interrupted but another 60 days shall be given to

the petitioner.

Motion for reconsideration is not required.

Court exercises original jurisdiction. The court is in the exercise of its appellate

jurisdiction and power of review.

The petition shall be filed with the RTC, CA,

Sandiganbayan and COMELEC.

The petition shall be filed with the Supreme Court.

What is an Ordinary Mode of Appeal and appeal on record/record on appeal, know the difference

Ordinary Appeal is an appeal by notice of appeal from a judgment or final order of a lower court on

questions of fact and law.

Ordinary Appeal

Matter of right All the records are elevated from the court of origin Notice and record on appeal are filed with the court of origin The case was decided by the RTC pursuant to its original jurisdiction. The case was originally

filed in the RTC.

HOW TO APPEAL

A. By Notice of AppealB. By Record on Appeal

Required in cases where multiple appeals are allowed:

1. Special proceedings such as probate;2. Actions for recovery of property with accounting;3. Actions for partition of property with accounting;4. Special civil actions of eminent domain (expropriation);5. Special civil actions for foreclosure of mortgage.

assignment - specpro

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