Provisional Remedies

Special Civil Actions

Antonio Ceasar Manila

General
• Definition
• Kinds of Provisional Remedies
• Independent actions
• Multi-use
Preliminary Attachment
• Definition
• Nature
• Who may apply
• Kinds of burdens
Preliminary Attachment
• Grounds for preliminary attachment
– 1. In an action for the recovery of a specified amount of money or damages, a party
who is about to depart from the Philippines with intent to defraud his creditors;
– 2. In an action for money or property embezzled or fraudulently misapplied or
converted to his own use by a public officer
– 3. In an action to recover the possession of property unjustly or fraudulently taken,
– 4. In an action against a party who has been guilty of a fraud in contracting the debt
– 5. 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
– 6. 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.
Preliminary Attachment
• Ex parte
• Order v. Writ
• Order for the issuance of the writ of attachment
• Requisites for the issuance
• Bond
Preliminary Attachment
• Stages of attachment
• Requirement of jurisdiction over the person of the defendant
• Contemporaneous service of summons
– When not required
– Torres v. Satsatin, G.R. No. 166759, [November 25, 2009], 620 PHIL 468-484)
Preliminary Attachment
• Effect of attachment
• Examination of a defendant
• Sale of attachment pending litigation
• Remedies to wrongful attachment
– Terceria
– Summary hearing
– Independent action
Preliminary Attachment
• Discharge a writ of attachment
– By filing a motion to discharge attachment and making a cash deposit or counterbond
– by filing a motion to discharge attachment based on grounds under Section 13, Rule 57
– attachment is improperly or irregularly issued or enforced
– bond is insufficient
– attachment is excessive (discharge only to the excess)
– property is exempt from execution

• Damages due to wrongful attachment

– Dumaran v. Llamedo, G.R. No. 217583, [August 4, 2021]
Preliminary Attachment
Manny borrowed P2,000,000.00 from Patty, payable after one (1) year. Both Manny and Patty
are residents of Manila City. After the debt became due and demandable, Manny failed to pay
the property despite demand. Thus, Patty wanted to file a complaint for sum of money against
Manny. However, she discovered that Manny, employing stealth and deceit, was about to leave
the country. Patty also discovered that Manny had a registered parcel of land in Manila City.

1. Can the trial court issue a writ of preliminary attachment before Manny leaves the country?

2. Suppose Manny successfully left the country, how can the court acquire jurisdiction over
case? Explain.
Preliminary Attachment
Kendal filed a complaint for sum of money with prayer for preliminary
attachment against Nigel before the RTC. Kendal alleged that Nigel is
employing fraud to escape his obligation and was about to depart the country.

1. The RTC issued an order of preliminary attachment against Nigel. When

shall the clerk of court issue the writ of preliminary attachment?

2. What’s the different between a writ of preliminary attachment and a writ of

attachment?
Preliminary Injunction
• Definition
• Principal action v. Provisional
– Jurisdiction
– Execution pending appeal
– Limitations
Preliminary Injunction
• Kinds of injunction under Rule 58
– Preliminary injunction
– Temporary restraining order
– 72-hour TRO

• Kinds of preliminary injunction

– Prohibitory
– Mandatory
Preliminary Injunction
• Kinds of preliminary injunction
– Prohibitory
– Mandatory

• Requisites for the grant of a preliminary injunction

– Clear and unmistakable right to be protected
– Right is directly threatened by the act sought to be enjoined
– Invasion of the right is material and substantial
– Paramount necessity to prevent serious and irreparable injury
Preliminary Injunction
• Irreparable injury
– Damages are irreparable within the meaning of the rule relative to the issuance of
injunction where there is no standard by which their amount can be measured with
reasonable accuracy. "An irreparable injury which a court of equity will enjoin includes
that degree of wrong of a repeated and continuing kind which produce hurt,
inconvenience, or damage that can be estimated only by conjecture, and not by any
accurate standard of measurement. (Tiong Bi, Inc. v. Philippine Health Insurance Corp.,
G.R. No. 229106, [February 20, 2019])
Preliminary Injunction
• Clear and unmistakable right
– Accordingly, the issuance of a writ of preliminary mandatory injunction is justified only
in a clear case, free from doubt or dispute. When the complainant's right is doubtful or
disputed, he does not have a clear legal right and, therefore, the issuance of a writ of
preliminary mandatory injunction is improper. (Spouses Ngo v. Allied Banking
Corporation, G.R. No. 177420 (Resolution), [October 6, 2010], 646 PHIL 681-689)
Preliminary Injunction
• Formal requisites
– Verified application
– Must be accompanied by a bond unless exempted
– Hearing and prior notice

• Counterbond not allowed

Preliminary Injunction
• Temporary restraining order
– Definition
– Summary hearing
– Effectivity
– Period
– Trial courts, CA, and SC
– Requisites
– Shall cause great or irreparable injury before Preliminary Injunction could be heard
Preliminary Injunction
• 72-hour Temporary restraining order
– Definition
– Ex parte
– Effectivity
– Period
– Requisites
– Extreme urgency
– Shall cause grave injustice and irreparable injury
Preliminary Injunction
• Status quo ante-order
– Definition
– Nature
– Difference between status quo ante order and preliminary injunction
– When the parties did not ask for a PI, but the court deems it proper, it may issue a status quo
ante order
– Status quo ante order may be issued motu proprio
– Status quo ante order does not require a bond
– In status quo ante order, it does not direct the doing or undoing of any act because it merely
requires to cease and desist; in PI, it requires the doing or undoing of an act.
Preliminary Injunction
Manny borrowed P3,000,000.00 from Patty, payable after one (1) year. Both Manny and Patty are residents of
Manila City. After the debt became due and demandable, Manny failed to pay the debt despite demand. Thus,
Patty wanted to file a complaint for sum of money against Manny. However, she discovered that Manny was
about to leave the country.

1. Suppose Patty discovered that Manny had a parcel of land in Manila and included in her complaint a prayer
for the issuance of a writ of preliminary attachment, should the court grant such prayer?

2. Suppose Patty also prayed for the issuance a temporary restraining order, which the court granted on
December 12, 2021. However, Manny only received the said order on December 18, 2021. The order stated
that it is only valid for 72-hours. What specific date will the said order expire? Explain.

3. May Patty include a prayer for both issuance of a writ of preliminary injunction and issuance of a writ of
provisional receivership against Manny in the same case? Explain.
Preliminary Injunction
Jamilla filed a complaint for trademark infringement with prayer for temporary restraining order and/or writ of
preliminary injunction against Gina before the RTC. Jamilla claims that Gina has been using “Lambino” in her
beer products even though this same mark is the dominant feature in Jamilla’s prior registered trademark
“Cervesa Lambino.” Jamilla claims that because of Gina’s acts, the consumers are buying “Lambino” thinking
that it was the same “Cervesa Lambino,” due to the likelihood of confusion, and is causing her irreparable injury
and damage. (10 points)

a. Can Jamilla ask for both temporary restraining order and writ of preliminary injunction in one action?

b. Should the RTC grant the writ of preliminary injunction?

c. Suppose the RTC granted the writ of preliminary injunction, can Gina file a counterbond to lift such writ?
Receivership
• When granted
• Formal requisites
• Bonds
• General power of a receiver
• Termination of receivership
Receivership
Fina, 70 years old, was one of the heirs of Pedro, who owned several commercial buildings.
However, Fina was not able receive her share in income arising from the said commercial
buildings as the distribution of the properties of Pedro was still being disputed among the heirs
in a pending action for settlement of estate. Fina, who is suffering from medical condition, filed
an application for provision remedy of receivership before the settlement court. Fina claims that
the commercial buildings owned by Pedro should be subject to a receivership so that she, along
with the other heirs, would receive the income therein pending litigation. The said income she
will receive will be used for her medical treatments.

1. Should the court grant the application for provisional remedy of receivership?

2. Why is the provisional remedy of receivership available during execution proceedings?

Replevin
• Definition
• Requisites
• Contents of application
• Bond
– Redelivery bond
Replevin
• Definition
• Requisites
• Contents of application
• Bond
– Redelivery bond

• Alternative judgment
Replevin
Gaston bought a motorcycle, worth P1,000,000.00, under a chattel mortgage in ABC Bank. However,
ABC Bank believes that Gaston was not paying the monthly installments on time. Thus, ABC Bank
filed a complaint for replevin, with application for provisional remedy of replevin. The trial court
granted the application for provisional remedy and the motorcycle was taken from Gaston and
delivered to ABC Bank, upon payment of the double-valued bond. However, for 2 years, ABC Bank
failed to prosecute its principal action for replevin. Thus, the trial court dismissed the complaint for
replevin due to the failure of the plaintiff to prosecute.

1. May Gaston claim damages from the double-valued bond paid by ABC Bank arising from the
replevin?

2. In replevin, why does a third party, who was prejudiced by the replevin, only has 120 days to
claim action for damages against the bond from the time of its filing?
Support Pendente Lite
• Purpose
• Requisites
• Factors in the amount of support
• Failure to comply
• Restitution
Support Pendente Lite
Lani filed a complaint for support against Francis because the latter has not been
giving financial support to their child, Kiara. The trial court granted the
provisional remedy of support pendente lite in favor of Lani. However, Francis
refused to comply.
1. What is the remedy of Lani against the failure of Francis to provide support?
2. Suppose Francis paid Lani the mandated support pendente lite, consisting of
P50,000.00 a month. However, the trial court eventually rendered judgment
against Lani because it was discovered that Lani was just using Francis’
money for her gambling problem. What is the remedy of Francis against
Lani?
Special Civil Actions
• Definition
• Distinctions
– In some special civil actions, like interpleader and declaratory relief, a cause of action is
not required
– The rules on venue, real or personal action, does not apply to SCA
– Summons may not be required in some SCA
– Some SCA may be exclusively filed in one court, like in ejectment
– There can be no joinder of causes of action if it involves SCA
– Rules on default is different in SCA.
– Some SCA are initiated by a petition
Interpleader
• Definition
• Requisites
• Lack of cause of action
• Interpleader v. intervention
• Jurisdiction
• Motion to dismiss
Declaratory Relief
• Definition
• Purpose
• Actions under Rule 63
– Action for declaratory relief
– Action for similar remedies such as:
– Action for reformation of instrument
– Action for quieting of title
– Action for consolidation of ownership
Declaratory Relief
• Declaratory relief proper
– Requisites
– There is a deed, will, contract, statute, executive order
– The terms of such is doubtful and require judicial construction
– There is no breach of the document or statute yet
– There is actual justiciable controversy
– The issue is ripe for judicial determination
– Adequate relief is not available through other means
Declaratory Relief
• Declaratory relief proper
– Jurisdiction
– Lack of cause of action
– Contrariety of rights
– Effect of breach
Declaratory Relief
• Similar remedies

– Reformation of an instrument (Art. 1359 of the Civil Code)

– Action for consolidation
– Action for quieting of title
Declaratory Relief
Pedro and Sam entered into a contract of sale involving 100 boxes of wines. They orally
agreed that it will be Sam, the buyer, who will pick up the boxes at Pedro’s store.
However, such stipulation regarding delivery was not included in the written contract of
sale. When the contract was about to become due, Sam demanded that Pedro deliver the
boxes to his house, pursuant to the Civil Code. However, Pedro refused.

1. What is the legal remedy of Pedro to compel Sam to pick up the boxes?

2. Suppose Pedro filed a complaint for declaratory relief. During the trial, the contract
became due and demandable, and Pedro still failed to deliver the boxes. Should the
trial court dismiss the complaint?
Review of judgments of COMELEC and
COA
• Nature
• Exclusion of CSC
• Rule 64 v. Rule 65
• Period to file
• Findings of fact not allowed
Rule 65 - Certiorari
• Extraordinary jurisdiction of the Supreme Court under the Constitution
– Judicial power includes the duty of the courts of justice xxx to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the Government.

• However, Sec. 1, Rule 65 provides a different definition

– When any tribunal, board or officer exercising judicial or quasi-judicial functions has
acted without or in excess its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction
Rule 65 - Certiorari
• Difference between a petition for review on certiorari under Rule 45 and
petition for certiorari under Rule 65
– Error of jurisdiction; error of judgment
– original and independent; appeal
– GAD; questions of law
– parties are tribunals or government agencies; parties are original parties
– 60 days; usually 15 days
– there must be an MR; MR is not required
Rule 65 - Certiorari
• Rule 65 is not a substitute for a lost appeal; exceptions
• Jurisdiction
• Hierarchy of courts
• Due process
– (Gios-Samar, Inc. v. Department of Transportation and Communications, G.R. No.
217158, [March 12, 2019])
Rule 65 - Certiorari
• Requisites of a petition for certiorari
– petition is directed against a tribunal, board, or officer, exercising judicial or quasi-
judicial functions; or if based on the constitution, against government instrumentality
– such acted in GAD-ALOEOJ
– no appeal nor any plain, speedy and adequate remedy in ordinary course of law
– Material date rule
– How to acquire jurisdiction
Rule 65 - Certiorari
Ben filed a complaint for sum of money against Lisa because the latter failed to pay the amount
of P3,000,000.00, which is due and demandable. During trial, Ben presented a video,
demonstrating that Lisa signed a promissory note representing the obligation, and he also
presented the actual promissory note signed by Lisa. Both were admitted in evidence.
However, in its decision, the trial court stated that it was not convinced that the signature of
Lisa in the promissory note was genuine, hence, the complaint lacks merit. Ben filed a motion
for reconsideration but it was denied.

1. Can Ben file a petition for certiorari to assail the judgment of the trial court?

2. Suppose the Court of Appeals entertained the petition for certiorari of Ben. How can the
Court of Appeals acquire jurisdiction over the person of Lisa?
Rule 65 - Prohibition
• Definition
• Requisites
– There must be an act of a tribunal, corporation, board, or person exercising judicial,
quasi-judicial, or ministerial functions
– it is committed with GAD
– there is no appeal or plain speedy remedy
Rule 65 - Prohibition
• Difference between Certiorari and Prohibition
– judicial or quasi-judicial; same with ministerial
– tribunal; same including corporations
– annul or modify judgment; order respondent to desist

• Fait accompli
Rule 65 - Mandamus
• Definition
– It is an extraordinary writ commanding a tribunal, corporation or board (1) to perform an
act he unlawfully neglects or (1) to perform or unlawfully excludes another from
enjoyment of a right

• Requisites
– clear legal right
– duty of defendant to perform such act because it is mandated by law
– act to be performed is ministerial
– no appeal nor plain speedy remedy
Rule 65 - Mandamus
• Ministerial duty v. Discretionary duty
• Grave abuse of discretion
• Unlawfully excludes another
Quo Warranto
• Definition
• Kinds of Provisional Remedies
• Independent actions
• Multi-use