Provrem Midterms Reviewer

7/29/2019 Provrem Midterms Reviewer

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MELO NOTES ON PROVISIONAL REMEDIES LCP2014A

PROVISIONAL REMEDIES

What are provisional remedies?

Provisional means temporary, preliminary or tentative. They are temporary, auxiliary and

ancillary remedies available to a litigant for the protection and preservation of his rights while the main

actions are pending (Riano, p.532; Tan v. Andre, 450 SCRA 145).

What is the purpose of provisional remedies?

(a) To preserve or protect a partys rights or interests while the main action is pending;(b) To secure the judgment;(c) To preserve the status quo;(d) To preserve the subject matter of the action.

What court grants provisional remedies?

The court with jurisdiction over the main action may grant the provisional remedy.

What are the kinds of provisional remedies?

Under the 1997 Rules of Court, and jurisprudence, the following are the kinds of provisional

remedies:

(a) Preliminary attachment (Rule 57);(b) Preliminary injunction (Rule 58);(c) Receivership (Rule 59);(d) Replevin (Rule 60);(e) Supportpendente lite (Rule 61);(f) Remedies other than those specified in Rules 57-61, as the list is not exclusive, such as

special proceeding of custody of minors to grant parent visitation rights and/or temporary

custody of the child (Sec. 6, Rule 99, RoC; Tan v. Andre)

(g) Deposit, granted by court in the exercise of its equity jurisdiction in a contract to sell apiece of land where the buyer asked the amount already paid to be deposited with the

court (Reyes v. Lim, 408 SCRA 560);

(h) Interim reliefs during a petition for a writ of amparo: Temporary Protection Order, WitnessProtection Order, Inspection Order, Production Order (Sec 14 & 15, Rules on the Writ of

Amparo; Riano, 534-536) [See Riano];

RULE 57:PRELIMINARYATTACHMENT

What is preliminary attachment?

It is a provisional remedy issued upon order of the court where an action is pending tobe levied upon the property of the defendant so the property may be held by the

sheriff as security for the satisfaction of whatever judgment may be rendered in the

case (Davao Light and Power, Inc. v. CA, 204 SCRA 343).

Attachment places the property under the custody of the court (custodia legis). It is in a quasi in rem proceeding or action in rem. The legal effect is the same.

Jurisdiction is acquired over the resand not the defendant.

Is issuance of the writ mandatory?

No. Grant of the writ is discretionary on the part of the court who also considers the principal

case when determining the propriety of the writ (Riano, 556-557).

What is the legal basis to grant a writ of preliminary attachment?

Rule 57 of the Rules of Court and Art. 1177 of the Civil Code. It is a purely statutory remedy

which cannot exist without a statute granting it.

What are the grounds for issuance of the writ?

Section 1.Grounds upon which attachment may issue. At the commencement of the

action or at any time before entry of judgment, a plaintiff or any proper party may have the

property of the adverse party attached as security for the satisfaction of any judgment that may

be recovered in the following cases:

(a) In an action for the recovery of a specified amount of money or damages,

other than moral and exemplary, on a cause of action arising from law, contract, quasi-


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contract, delict or quasi-delict against a party who is about to depart from the

Philippines with intent to defraud his creditors;

(b) In an action for money or property embezzled or fraudulently misapplied

or converted to his own use by a public officer, or an officer of a corporation, or an

attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by

any other person in a fiduciary capacity, or for a willful violation of duty;

(c) In an action to recover the possession of property unjustly or fraudulentlytaken, detained or converted, when the property, or any part thereof, has been

concealed, removed, or disposed of to prevent its being found or taken by the

applicant or an authorized person;

(d) In an action against a party who has been guilty of a fraud in contracting

the debt or incurring the obligation upon which the action is brought, or in the

performance thereof; [Most abused ground]

(e) In an action against a party who has removed or disposed of his property,

or is about to do so, with intent to defraud his creditors; or

(f) In an action against a party who does not reside and is not found in the

Philippines, or on whom summons may be served by publication.

What are the requisites for the issuance of the writ (Riano 555)?

(a) The case is one where preliminary attachment is proper;(b) The applicant must file a motion, with notice and hearing or ex parte;(c) The applicant shows by affidavit (under oath) that there is no sufficient security for the claim

sought to be enforced, or the amount claimed in the action is as much as the sum of which the

order is granted above all counterclaims;

(d) The applicant posts a bond executed to the adverse party [attachment bond] to answer for alldamages incurred by the party against whom the attachment was issued and sustained by him

by reason of the attachment.

Who may apply for a writ of attachment?

The plaintiff, defendant or any other proper party (See Sec 1 Rule 57).

When do you apply for the writ?

At the commencement of the action or at any time before entry of judgment.

May the writ be issued ex parte?

Yes. The writ may be granted upon motion and notice and hearing by the court or ex parte by

the court.

What are the stages in the grant of the preliminary attachment?

First Court issues order granting application

Second Writ is issued pursuant to order granting it

Third Writ is implemented after court acquires jurisdiction

over the defendant

How do you prevent issuance of the writ?

(a) deposit an amount equal in value to the bond fixed by the court in the order of attachment or anamount equal to the value of the property to be attached, exclusive of costs;

(b) by giving a counterbond executed to the applicant, in an amount equal to a bond he posted orto the value of the property, exclusive of costs (Sec 2 & 5, R57).

How can you have the writ discharged?

Writ enforced File motion to discharge attachment.

Notice and Hearing.

Post cash deposit or counterbond.

Motion to set aside or discharge the attachment and

during hearing of motion allege


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(a) the attachment was improperly or irregularlyissued (Sec. 13, R 57)

(b) bond of attaching creditor is insufficient(c) attachment is excessive and must be

discharged as to the excess (Sec 13, R57)

(d) property is exempt from execution, and thusfrom preliminary attachment (Sec. 2, R57)

Motion for intervention.

File an affidavit of third party claim with the sheriff theproperty is yours and not the property of the

defendant. (Sec. 14, R57)

Melo Note: This should be your first remedy as other

actions might be premature. Does not become a party

to the case by this. This is a matter between you and

the sheriff.

What are the kinds of attachment?

KIND PARTIES COURT TAKES

POSSESSION

WHEN ISSUED

Preliminary attachment Against those whom the

writ is directed.

YES. Start of action or before

entry of judgmentGarnishment The plaintiff, defendant,

and third person called

garnishee who holds the

defendants property or

owes the defendant

money.

NO. Garnishee

maintains

possession but he is

directed by the

court to maintain

the status quo.

Jurisdiction over

him is done by

service of writ of

garnishment

Start of action or before

entry of judgment

Levy on execution Plaintiff and judgment

obligor.

YES. This is a

preliminary step

towards an

execution sale of

the property.

After judgment

In what cases may preliminary attachment issue?

Those cases enumerated in Section1, Rule 57, Rules of Court.

May damages be awarded for wrongful attachment?

Yes.

May property in custodia legis be attached?

Yes. After proper notice to the proper notice to the court or quasi-judicial agency and the

custodian of the property is given (Riano 560, quoting Sec. 7 last par. Rule 57). The attachment operates

as a lien on the property.

May property previously attached be again attached?

Yes. There will only arise a priority of liens on the property, with the first attachment garneringpriority over subsequent attachments.

What are the remedies of third persons as to the property attached (Ching v. CA, Riano 561-563)?

(a) terceria, make an affidavit of his right to possession or title and serve it on the sheriff andattaching party;

(b) motion for intervention with court that issued writ of attachment;(c) file separate action to nullify the levy with prayer for damages from the unlawful levy and

seizure.

(d) Affidavit filed with the sheriff (Sec. 14, R57).


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May property subject of writ, while the main action is pending, be sold?

General Rule: NO.

Exception: when it shall be made to appear to the court in which the action is pending, upon

notice and hearing to both parties, that the attached property is perishable or that the interests

of all the parties to the action will be subserved by the sale of the attached property (Sec. 11,

R57; China Banking Corporation v. Asian Corporation and Development Corporation).

BOND COUNTERBOND

secure attachment, in favor of plaintiff securing judgment, in favor of

defendant

WHAT KIND OF DAMAGES MAY BE AWARDED?

KIND YES/NO WHEN

ACTUAL YES. ALWAYS.

o PETITIONER COSTS OF SUIT

o DEFENDANT loss of profits premiums paids/security paid to surety

company

fact property is encumbered anything that might have been suffered by

defendant

MORAL YES. (1) bad faith; or(2) malicious intentEXEMPLARY YES.


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RULE 58:PRELIMINARYINJUNCTION

What is preliminary injunction?

It is an ancillary or preventive remedy where a court requires a person, party, court ortribunal either to refrain from or to perform particular acts during the pendency of an

action. It is a temporary remedy subject to the final disposition of the principal action

(Dungog v. CA, 408 SCRA 267).

Issued to the court to prevent threatened or continuous irreparable injury to parties beforetheir claims can be thoroughly studied and adjudicated.

Sole objective is to preserve the status quo until the merits of the case can be heard fully(MIAA v. Rivera Village Lessee Homeowners Association Inc., 471 SCRA 358).

It is a preservative remedy for the protection of substantive rights or interests (Republic v.Evangelista, 466 SCRA 544).

When may a writ of preliminary injunction be granted?

Section 3 of Rule 58, RoC, provides that the writ may be granted in the following instances:

(a) That the applicant is entitled to the relief demanded, and the whole or partof such relief consists in restraining the commission or continuance of the

act or acts complained of, or in requiring the performance of an act or acts

either for a limited period or perpetually;

(b) That the commission, continuance or non-performance of the act or actscomplained of during the litigation would probably work injustice to theapplicant; or

(c) That a party, court, agency or a person is doing, threatening, or isattempting to do, or is procuring or suffering to be done some act or acts

probably in violation of the rights of the applicant respecting the subject

of the action or proceeding, and tending to render the judgment

ineffectual.

Who may issue the preliminary injunction?

Any court, in CA & SC, different procedure since a lone justice may issue a preliminary

injunction.

At what stage of the proceedings may the writ be granted?

At any stage or time prior to the judgment or final order (Sec. 1, Rule 58, RoC).

Injunction (main action) Preliminary injunction

Independent action. Incident to a principal action.

Seeks an action embodying a final

injunction.

Seeks to preserve the status quo until the

merits can be heard. Purpose is to enjoin

the defendant from the commission or

continuance of a specific act or to compel a

particular act in violation of the rights of the

applicant.

Ex: Injunction under Art. 26 of Civil

Code, against prying into privacy of

anothers residence, or meddling with or

disturbing anothers private or family

relations.

Ex: Injunction against the sale of a piece of

land under litigation.

Writ secured before finality of judgment. Is issued as a judgment, making the

injunction permanent.

Sec. 1 Rule 58 Sec. 9 Rule 58

File with RTC, since an action for

injunction is one incapable of pecuniary

estimation

File with court where the main action is

pending, including MTC or MeTC; If filed

with SC or CA the writ may be issued by

the SC or any member thereof, or CA or

any member thereof (Sec. 2, Rule 58).


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What is the purpose of preliminary injunction?

It is to preserve the status quo or to prevent future wrongs in order to preserve and protect

certain interests or rights during the pendency of the main action (Cortez-Eztrada v. Heirs of

Domingo/Antonia Samut, 451 SCRA 275).

What is the status quo?

It is the last, actual, peaceable and uncontested situation which precedes the controversy the

situation preceding the filing of the case. The injunction should not establish new relations between the

parties but only maintain or re-establish the pre-existing relationship (Riano 568).

What is a status quo order (Regalado 734)?

In the nature of cease and desist order, does not direct the doing or undoing of acts; Does not require the posting of a bond; Issued motu propio by the court when the projected proceedings in the case made the

conservation of the status quo desirable or essential, but the affected parties neither sought

relief nor did the allegations in his pleading sufficiently make out a case for a TRO;

What are the kinds of injunction?

Prohibitory Injunction Mandatory Injunction

Purpose is to prevent a person from

the performance of a particular act.

Purpose is to require a person to

perform a particular act.

Act has not yet been performed. Act has already been performed

and has violated the rights of

another.Status quo is observed. The status quo is restored.

What effect does a mandatory injunction have?

It does not, in a sense, preserve the status quo since it commands the performance of specific

acts (Riano 568). It is more cautiously regarded than prohibitory injunction. It is only issued in a clear

case, free from doubt or dispute, cases of extreme urgency where the right of the applicant is clear

(Riano 568; China Banking Corp. v. Co, G.R. No. 174569, 17 September 2008).

Prohibitory injunction Prohibition

Provisional remedy Special civil action

Directed to party litigant Directed to tribunal, corporation,

board or officer

Issued to require party to refrain from

a particular act

Seeks a judgment commanding a

tribunal, corporation, board orofficer to desist from further

proceeding in the action because

[GADLEJ]

a) It has no jurisdictionb) Acting in excess of

jurisdiction

c) Gravely abused itsdiscretion amounting to

lack of jurisdiction

Injunction does not involve

jurisdiction of court

May be on the ground the court

acted without or in excess of

jurisdiction

Injunction may be main action, or

provisional remedy (as in this case)

Always a main action

Mandatory injunction Mandamus

Provisional remedy Special civil action

Directed to party litigant Directed to tribunal, corporation,

board, officer or person

performing a ministerial duty

Issued to require a party to perform

an act to restore the last peaceable

Seeks a judgment commanding a

tribunal, corporation, board,


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uncontested status preceding the

controversy

officer or person performing a

ministerial duty required to be

performed by law

Is a restraining order different from an injunction?

YES. It is only temporary or provisional. Also referred to as temporary restraining order. A restraining order is intended only as a restraint upon the defendant until the propriety of

granting an injunction, temporary or perpetual, can be determined, and it does no more than

restrain the proceedings until such determination (Regalado 733, citing Blacks Law Dictionary,

4th Ed.)

The court in Anglo-Fil Trading Corp. v. Lazaro (G.R. No. 54958, 2 September 1983) adoptedthis definition. It is intended to restrain upon the defendant until the propriety of granting an

injunctionpendent lite can be determined, and it goes no further than to preserve the status quo

until such determination.

The grant, denial, or lifting of the restraining order does not preempt the courts power todecide the issue in the main action the injunction suit.

According to the case ofSimpas v Adil(1975), if the restraining order is effective for more thanone month it is no longer temporary, it becomes semi-permanent akin to a preliminary

injunction, thus abusing its original purpose.

What are the requisites for the issuance of the writ of preliminary injunction or TRO?

1) Verified application (Sec. 4, Rule 38), absence of such makes the application insufficient inform and substance (Rivera v. Mirasol);

2) Applicant has a right to relief, right in esse or right to be protected and the act theinjunction is directed at is violative of such right;

3) There is a need to restrain the commission or continuance of the acts complained of and ifnot enjoined would work injustice to applicant;

4) Applicant posts a bond in an amount fixed by the court, unless exempted by the court, tobe liable for damages which the party enjoined by the preliminary injunction may suffer if

the court decides the applicant was not entitled to the writ;

5) Notice and summons served to the defendant, if application of writ is included withcomplaint, as well as applicants affidavit and bond. Notice to refers also that notice must

be given and the complaint and application shall be raffled off only in the presence of the

defendant;

6) Hearing on the application;7) Applicant provides proof of legal right and injury sustained.

When is injury irreparable? If it is of such constant and frequent recurrence that no fair or reasonable redress can

be had therefor in a court of law (Ollendorf v. Abrahamson, 38 Phil. 585).

There is no standard by which their amount can be measured with reasonableaccuracy, it is not susceptible of mathematical computation (SSC v. Bayona, et al., L-

13555, 30 May 1962).

What is the quantum of evidence required?

Prima facie right is needed at the hearing to show that the applicant has an ostensible right tothe final relief prayed for in his complaint (Republic v. Evangelista).

Evidence need only be a sampling of the evidence of justification for a preliminary injunctionpending the decision on the merits (Sps. Nisce v. Equitable PCI-Bank).

Why is there a requirement of notice and hearing?

A preliminary injunction cannot be issued without a prior notice and hearing, as required by

Sec. 5, Rule 58 of the RoC. It cannot be issued ex parte.

When may the issuance of the writ be refused, or the writ dissolved (Sec. 6 & 7, R58, RoC)?

(a) The complaint is insufficient;(b) The defendant is permitted to post a counter-bond, it appearing that he would sustain great

damage while the plaintiff can be amply compensated;

(c) On other grounds, as where the bond posted by the applicant turned out to be insufficient ordefective.

Does the dissolution issue as a matter of course after filing the counter-bond?


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NO. The court still has to determine and assess the probable relative damages and weight

whether the defendant would sustain great damage while the plaintiff can be amply compensated

(Director of the Bureau of Telecommunication v. Aligaen, L-31135, 29 May 1970).

Must the motion for dissolution be verified?

YES. A motion for the dissolution of the writ of preliminary injunction must be verified (Canlas v.

Aquino, L-168115, 24 July 1961).

QUERY

In a case, judge is in charge of case for illegal possession of explosives. He fails to inhibit

himself. A petition for prohibition is applied and granted by the CA. A bond is posted concurrent

therewith.

Issue: Will the bond answer for damages in case the case is later dismissed or the petitioner

loses the case?

Held: See Lim v. Callejo (1981): NO. Bond will not answer for damages. Judge Callejo was

made respondent in the special civil action for prohibition inhis official capacity as judge of the Municipal

Court of Balabac and not as private person. Consequently, any damage or expense incurred by him in

connection with the case would be official in nature and for which no fund of private origin has to answer.

Thus, such portion of the appealed order which held the cash bond posted by Lim answerable for

whatever damages Judge Callejo may claim should be set aside. The posting of said bond should not

have been ordered in the first place, as no private person would be prejudiced by the preliminary

injunction.

CLASSLECTURE

What must be proven? Requisites

(1) actualexisting legal right [not inchoate or contingent; not moral/natural/etc]

(2) invasion [can prove the invasion is actual, imminent]

(3) damage irreparable [cannot be repaired, compensated by payment of damages; Strike a balance

between alleging substantial damage and alleging irreparable damage;

youre basing part of it on some conjecture, on something nebulous]

Species of injury that ought not be submitted to on one hand or inflicted on theother is of such constant & frequent recurrence that no fair or reasonableredress can be had

TRO v. INJUNCTION

Requisites are the same Period

As a rule, can TRO be issued ex parte?

GEN: NO

EXC: one exception, 3-day TRO issued by executive judge, during exceptional circumstances

PROCESS: RTC

Complaint (specific allegation; attach proof) => executive judge => w/in 24 hours notify parties for

conference and raffle =>raffle to branch or Pres. J => summary hearing, w/in 3 days decide =20d TRO=> sked hearing on writ of PI (present witnesses; writ effective for as long as action is pending)

Why executive judge acts on TRO?

Complaint has not been raffled yet Will not even conduct summary hearing Will look at complaint and see if 3-day TRO is deserved

PROCESS


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PROCESS: CA

o May be issued by single justice or by a divisiono Even a single justice may issue TRO, if prove cannot get it from division in a timely

manner, but the justice must submit TRO to division ASAP to be reviewed

o Has revised internal rules on issuance of TROso 60 days

PROCESS: SCo TRO indefinite or until further orderso Any justice may issue, but as a matter of courtesy to peers he has to consult with

division members at the earliest opportunity

o Same rules/requisitesWhen is damage irreparable? Is there irreparable damage in cases of unfair competition or

infringement of trademarks or copyrights?

YES. According to IP Code.Irreparable damage

Must be difficult or incapable of pecuniary estimation Usual mistake of litigants, eager to show the damage they give an amount, only showing

that damage is not irreparable (as in the SSC case)

Ollendorf case: By irreparable injury is not meant such injury as is beyond the possibilityof repair or compensation in damages, or great injury or great damage, but that kind of

injury, whether great or small, that ought not to be inflicted, of such constant and frequentrecurrence thatno fair or reasonable redress can be had therefore in a court of law (Gilchrist

vs. Cuddy (29 Phil. rep., 542, 552 citing Wahle vs. Reinbach (76 Ill., 322)) .

o The admitted fact that plaintiff has failed to establish proof of pecuniary damageby reason of the breach of the contract by defendant by the acts committed prior

to the issuance of the preliminary injunction is, of course, a bar or nay money

judgment for damages for the breach of the contract, but will not justify us in

permitting defendant to continue to break his contract over plaintiff's objection.

The injury is a continuous one. The fact that the court may not be able to give

damages for that part of the breach of the contract which had already taken place

when its aid was invoked is no reason why it should countenance a continuance of

such disregard of plaintiff's rights.

o With respect to the contention that an injunction may only be granted to preventirreparable injury, the answer is that any continuing breach of a valid negative

covenant is irreparable by the ordinary process of courts of law. As stated by High,(vol. 2, p. 906) injunctive relief is granted in cases like this "upon the ground that

the parties cannot be placed in status quo, and that damages at law can afford no

adequate compensation, the injury being a continuous one irreparable by the

ordinary process of courts of law

2 kinds of irreparable damageWhat if Ms Garcia is a klepto, she steals my ballpen every meeting, is that irreparable damage?

YES. Though there can be compensation in the form of damages, it is not only that. It is thatspecies of damage where the injury being a continuous one irreparable by the ordinary

process of courts of law. Otherwise you would have to file a case for each time she steals a

ballpen.

When does injunction end?

Upon dismissal or earlier (because of change in circumstances) If case is won by plaintiff it can be a permanent injunction

Is a status quo order in the nature of a TRO?

Melo Note: I dont know. For me if theres an agreement there is basis to force parties toenforce it, but it does not constitute a process of the court.

What if RTC grants TRO effective for 25 days? Is TRO invalid?

Not invalid as a whole, only invalid as to the excess (NEA case).Is the posting of a bond a substantial requirement for TRO?


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Melo Note: Mere procedural requirement. No law which requires party to give a bond.Everything in the bond is provided in the rules. In other jurisdictions, like in Singapore,

bond is not required.

Malice or lack of good faith is not an element of recovery on the bond (Limitless case).Can the court moto propio deny the application for TRO/Injunction even without calling a hearing

(Bataclan case)?

GEN: Must call hearing, when there is prima facie case on pleading EXC: When the insufficiency for the calling of the hearing is apparent from the pleading

itself

When can cases not be issued?

Infrastructure projects (limited, since only SC may issue injunction) Cannot issue to restrain implementation of CARP Cannot enjoin Meralco from disconnecting, unless you put up a bond, RA 7832 Collection of taxes (NIRC, Sec. 219) [why? Lifeblood doctrine] Melo Note: Way around is assail some other collateral matter to prevent government from

collecting or assessing tax; you can assail the basis of the tax

Constitutional offenses, cannot restrain the constitution, exc. Is Brocka casePreliminary mandatory injunction

Required to do something Courts are stricter with this Changes the present situation between the parties Improper to be issued prior to final hearing before the end of the case [talks on

mandatory injunction in decision] EXCEPT in cases of extreme urgency where the relative

inconvenience.

Relative inconvenience, theory of relative hardshipsCapitol Medical Center Inc case

Teacher strike, during the strike they were joined by the students School operations completely stopped and school forced to close down The next sem, students asked school to reopen, filed case to compel the school to reopen,

claim they have a contract, asked for a preliminary injunction, RTC granted

SC said, status quo was there was no school, only reason there was no school was becauseof your own fault. You cannot now ask the court to undo what you yourself have done. Clean

hands doctrine.

When usually granted?

To restore electrical service Art 539 Civil Code: right of possessor to be respected in his possession

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