Monday, December 17, 2007

Rules 41, 45, 58 and 65 amended; effective Dec. 27, 2007

In an En Ban resolution of the Philippine Supreme Court docketed as A.M. No. 07-7-12-SC, dated December 4, 2007, Rules 41, 45, 58 and 65 of the !997 Rules of Civil Procedure have been amended, the same to take effect on December 27, 2007.

The new Sec. 1 of Rule 41 (Subject of appeal) now provides that an appeal may be taken from “a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by these Rules to be appealable”. No appeal may be taken from:

    1. An order denying a petition for relief or any similar motion seeking relief from judgment;
    2. An interlocutory order;
    3. An order disallowing or dismissing an appeal;
    4. An order denying a motion to set aside a judgment by consent, confession or compromise on the ground of fraud, mistake or duress, or any other ground vitiating consent;
    5. An order of execution;
    6. A judgment or final order for or against one or more of several parties or in separate claims, counterclaims, cross-claims and third-party complaints, while the main case is pending, unless the court allows an appeal therefrom; and
    7. An order dismissing an action without prejudice.

In any of the foregoing circumstances, the aggrieved party may file an appropriate special civil action as provided in Rule 65.

Sec.1 of Rule 45 (Filing of petition with Supreme Court) now provides that the verified petition for certiorari which may be filed on pure questions of law with the Supreme Court from a judgment, final order or resolution of the Court of Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional Trial Court or other courts, “may include an application for a writ of preliminary injunction or other provisional remedies”. The petitioner may seek the same provisional remedies by verified motion filed in the same action or proceeding “at any time during its pendency”.

Sec. 5 of Rule 58 (Preliminary injunction), reiterating the rules that in the event that the application for preliminary injunction is denied or not resolved within the 20-day period, the temporary restraining order is deemed automatically vacated, now provides that “the effectivity of a temporary restraining order is not extendible without need of any judicial declaration to that effect, and no court shall have authority to extend or renew the same on the same ground for which it was issued”. The trial court, the Court of Appeals, the Sandiganbyan or the Court of Tax Appeals that issued a writ of preliminary injunction against a lower court, board, officer, or quasi-judicial agency “shall decide the main case or petition within six (6) months from the issuance of the writ”.

The old provisions of the same section were reiterated, thus:

1. No preliminary injunction shall be granted without hearing and prior notice to the party or persons sought to be enjoined.

2. If it shall appear from facts shown by affidavits or by the verified application that great or irreparable injury would result to the applicant before the matter can be heard on notice, the court to which the application for preliminary injunction was made, may issue ex parte a temporary restraining order to be effective only for a period of twenty (20) days from service on the party or person sought to be enjoined, except as herein provided.

3. Within the twenty-day period, the court must order said party or person to show cause at a specified time and place, why the injunction should not be granted.

4. The court shall also determine, within the same period, whether or not the preliminary injunction shall be granted, and accordingly issue the corresponding order.

5. However, if the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury, the executive judge of a multiple-sala court or the presiding judge of a single-sala court may issue ex parte a temporary restraining order effective for only seventy-two (72) hours from issuance, but shall immediately comply with the provisions of the next preceding section as to service of summons and the documents to be served therewith.

6. Thereafter, within the aforesaid seventy-two (72) hours, the judge before whom the case is pending shall conduct a summary hearing to determine whether the temporary restraining order shall be extended until the application for preliminary injunction can be heard.

7. In no case shall the total period of effectivity of the temporary restraining order exceed twenty (20) days, including the original seventy-two hours provided herein.

8. However, if issued by the Court of Appeals or a member thereof, the temporary restraining order shall be effective for sixty (60) days from service on the party or person sought to be enjoined.

9. A restraining order issued by the Supreme Court or a member thereof shall be effective until further orders.

Sec. 4 of Rule 64 (certiorari) now clarifies certain issues, thus:

1. The petition for certiorari shall be filed not later than sixty (60) days from notice of the judgment, order or resolution.

2. In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the petition shall be filed not later than sixty (60) days counted from the notice of the denial of the motion.

3. If the petition relates to an act or an omission of a municipal trial court or of a corporation, a board, an officer or a person, it shall be filed with the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court.

4. It may also be filed with the Court of Appeals or with the Sandiganbayan, whether or not the same is in aid of the court’s appellate jurisdiction.

5. If the petition involves an act or an omission of a “quasi-judicial agency”, unless otherwise provided by law or these rules, the petition shall be filed with and be “cognizable only by the Court of Appeals”.

6. In election cases involving an act or an omission of “a municipal or a regional trial court”, the petition shall be filed “exclusively with the Commission on Elections, in aid of its appellate jurisdiction”.

Sec. 7, Rule 65 (injunctive relief) now provides that the public respondent “shall proceed with the principal case within ten (10) days from the filing of a petition for certiorari with a higher court or tribunal, absent a temporary restraining order or a preliminary injunction, or upon its expiration”. It further provides that “failure of the public respondent to proceed with the principal case may be a ground for an administrative charge”.

The provision reiterates the old rules:

1. The court in which the petition is filed may issue orders expediting the proceedings, and it may also grant a temporary restraining order or a writ of preliminary injunction for the preservation of the rights of the parties pending such proceedings.

2. The petition shall not interrupt the course of the principal case, unless a temporary restraining order or a writ of preliminary injunction has been issued, enjoining the public respondent from further proceeding with the case.

Sec. 8, Rule 65 reiterates old rules and contains strict amendments, to wit:

1. After the comment or other pleadings required by the court are filed, or the time for the filing thereof has expired, the court may hear the case or require the parties to submit memoranda.

2. If, after such hearing or filing of memoranda or upon the expiration of the period for filing, the court finds that the allegations of the petition are true, it shall render judgment for such relief to which the petitioner is entitled.

3. However, the court may dismiss the petition if it finds the same patently without merit or prosecuted manifestly for delay, or if the questions raised therein are too unsubstantial to require consideration.

4. In such event, the court may award in favor of the respondent treble costs “solidarily against the petitioner and counsel”, in addition to “subjecting counsel to administrative sanctions under Rules 139 and 139-B of the Rules of Court”.

5. The Court may “impose motu proprio, based on res ipsa loquitur, other disciplinary sanctions or measures on erring lawyers for patently dilatory and unmeritorious petitions for certiorari”

Atty. Manuel J. Laserna Jr.

Las Pinas City, Philippines