1

Ponty filed with the RTC an action to recover ₱1 million from

Derick. In his verified complaint, Ponty claimed that he had
entrusted the money to Derick for safekeeping but the latter had
converted the same to his personal use. Ponty included in his
complaint an application for the issuance of a writ of preliminary
attachment against Derick. The application is supported by Ponty’s
affidavit executed in accordance with Rule 57.

(a) May the RTC without notice and hearing issue an order

granting the application for preliminary attachment
against Derick?

Yes, the Regional Trial Court without notice and hearing

may issue an order granting the application for
preliminary attachment against Derick.

Under Rule 57 of the Rules of Court, the Court in which

the action is pending, the Court of Appeals or the Supreme
Court, may issue ex parte or upon motion, an order
granting the application of the preliminary attachment in
order to avoid the possibility of the adverse party to
abscond or dispose the property in issue, while the
application is being heard.

Here, Ponty claimed that the money entrusted to Derick

for safekeeping had converted the same to his personal
use. In order to prevent Derick to dispose the property in
his safekeeping, a preliminary attachment is in order.
Hence, the Regional Trial Court may issue the application
for preliminary attachment.

(b) The RTC subsequently issued a writ of preliminary

attachment after Ponty had posted the attachment bond.
Derick then moved to discharge the writ of attachment on
the ground that the money was delivered to him by way of
loan and not for safekeeping. May the RTC grant Derick’s
motion to discharge the attachment?
 Yes, the RTC may grant the motion to discharge the
writ of attachment after Ponty had posted the
attachment bond.

Under Rule 57 of the Rules of Court, the party whose

property has been attached may move to discharge
the writ of preliminary attachment if the same has
been improperly attached.

Here, the money that was delivered to Derick was by

way of loan and not for safekeeping.

Hence, the RTC may grant Derick’s motion to

discharge the attachment.

2
Primus filed an action before the Regional Trial Court to recover a
parcel of land against Dmitri. Primus alleged that he had executed a
contract to sell over the land in favor of Dmitri; however, after
making a down payment of ₱450,000, Dmitri failed to pay the
balance of ₱1 million. Dmitri filed an answer with a counterclaim
for moral and exemplary damages for the filing of what he said was
an unwarranted suit by Primus. The RTC rendered a judgment in
favor of Primus which in due course became final and executory.

Subsequently Dmitri filed with the RTC an action against

Primus for the refund of the ₱450,000 down payment. Primus filed
a motion to dismiss on the ground of res judicata, arguing that
Dmitri should have set up the claim for refund as a counterclaim in
the first case. How should the court rule on the motion to dismiss?

The Court should deny the motion to dismiss.

Under the Rules of Civil Procedure, a permissive

counterclaim is not barred by res judicata if not set-up.
 Here, the claim of refund of Dmitri is a permissive
counterclaim, since the evidence on which it is based is
not the same.

Hence, the Court should deny the motion to dismiss.

The car of Boris was stopped by armed policemen at a police

checkpoint. Boris was told to alight and to open the trunk of his
car which he did. Illegal firearms were found inside. Boris was
subsequently convicted by the RTC, the key evidence against him
being the seized firearms. On appeal before the Court of Appeals,
Boris argued that the firearms were illegally seized and thus
inadmissible in evidence. The CA affirmed the RTC judgment
stating that Boris had consented to the search and that Boris had
waived the ground of illegal seizure by not raising it in the trial
court. The conviction became final and Boris started serving his
sentence. You have just been engaged by Boris’ wife as his counsel.
What legal remedy or step would you take, if any, in behalf of Boris?

The legal remedy or step that I would take as counsel for

Boris is that, I will file a motion to suppress the seized
firearms, as evidence against him.

Under the Rules on Evidence, illegally seized items

without a search warrant or items seized not in plain view are
inadmissible as evidence.

Here, the firearms were illegally seized for those were not
in plain view when the search was conducted at a police
checkpoint.

Hence, such illegally seized firearms are inadmissible as

evidence and a motion to suppress the evidence must be
filed.
 4
Punky filed a torts case for damages Dinky. Punky will offer in
evidence a medical certificate executed by Dr. No concerning the
physical injuries suffered by Punky. Dr. No however was not
presented as a witness in court.

(a) May the affidavit be admitted in evidence over the relevant

objection of Dinky?

No. The affidavit should not be admitted as evidence

over the relevant objection of Dinky.

Under the Judicial Affidavit Rule, the Court shall not

consider the affidavit of the witness who did not
appear to testify.

Here, Dr. No was not presented as a witness in court.

Hence, the medical certificate executed by Dr. No
concerning the physical injuries suffered by Punky is
just hearsay.

(b) Would your answer to (a) be the same if Dr. No had been
presented in court as a witness to testify regarding his
medical certificate?

No, my answer to (a) would not be the same if Dr. No

had been presented in court.

Under the Judicial Affidavit Rule, the Court shall not

consider the affidavit of the witness who did not
appear to testify.

Here, Dr. No will testify as a witness regarding the

medical certificate.

Hence, the affidavit is now admissible as evidence in

court.
 5

A woman died leaving her husband (petitioner) and her seven

siblings (private respondents) as her sole heirs. The petitioner then
executed affidavits of self-adjudication under Rule 74 averring that
he was the sole heir and causing the registration of his wife’s real
property under his sole name. The private respondents thus filed
with the RTC an action for annulment of the affidavits and for
reconveyance of the real property against the petitioner. In this
action, the private respondents attached photocopies of their birth
certificates showing that they are the siblings of the decedent.

The petitioner filed an unsworn answer which raised the

affirmative defense of failure of the complaint to state a cause of
action. The petitioner argued that since there was no preliminary
determination of the private respondent’s status as heirs in the
appropriate special proceeding for the settlement of the deceased’s
estate, the private respondents cannot be said to be the real
parties-in-interest.

(a) The private respondents argued that the petitioner is

deemed to have admitted the genuineness and the due
execution of the birth certificates since they did not
specifically deny the same under oath. Is this argument
correct?

Yes, the argument is correct.

Under the Rules of Court, failure to specifically deny the

documents under oath is deemed to have admitted the
genuineness and the due execution of the documents.

Here, the petitioner filed an unsworn answer, which raised

the affirmative defense of the complaint’s failure to state
a cause of action.
Hence, the petitioner has deemed admitted the
genuineness and the due execution of the birth
certificates.

(b) How should the court rule on the affirmative defense?

The Court should grant the affirmative defense.

Under the Rules on Special Proceeding, the preliminary

determination of the heirs is made in a special proceeding
and not in an action filed before the Regional Trial Court.

Hence, the Court should grant the affirmative defense.