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Remedial Law

Substitute or risk dismissal of action

In this case, a lawyer filed a motion for reconsideration without first being properly substituted as counsel of record. The Supreme Court affirmed the decision of the Court of Appeals denying the motion for reconsideration, and reiterated Section 26, Rule 138 of the Rules of Court, that a valid substitution of counsel has the following requirements: (1) the filing of a written application for substitution; (2) the client’s written consent; (3) the consent of the substituted lawyer if such consent can be obtained; and, in case such written consent cannot be procured, (4) a proof of service of notice of such motion on the attorney to be substituted in the manner required by the Rules.

Heirs of Retuya v. CA, et al., G.R. No. 163039, April 6, 2011, Second Division

How to distinguish between cases of “forcible entry” and “unlawful detainer”?

An action for “forcible entry” must contain allegation that one is in possession of the property and was ousted therefrom either by force, intimidation, threat, strategy, or stealth, an element of that kind of eviction suit.

On the other hand, an action is for unlawful detainer if the complaint sufficiently alleges the following: (1) initially, the defendant has possession of property by contract with or by tolerance of the plaintiff; (2) eventually, however, such possession became illegal upon plaintiff’s notice to defendant, terminating the latter’s right of possession; (3) still, the defendant remains in possession, depriving the plaintiff of the enjoyment of his property; and (4) within a year from plaintiff’s last demand that defendant vacate the property, the plaintiff files a complaint for defendant’s ejectment. If the defendant had possession of the land upon mere tolerance of the owner, such tolerance must be present at the beginning of defendant’s possession.

(Dionisio v. Linsangan, G.R. No. 178159, March 2, 2011)

Instances when a writ of execution may be appealed

A final and executory judgment may be modified to prevent an inequitable or unjust execution.

The RTC should have determined via hearing if Danilo’s allegation were true and accordingly modified the period Danilo is to be held accountable for monthly rentals. Unjustified delay in the enforcement of a judgment sets at naught the role of courts in disposing justiciable controversies with finality.  Once a judgment becomes final and executory, all the issues between the parties are deemed resolved and laid to rest. All that remains is the execution of the decision which is a matter of right. Banaga v. Majaducon (G.R. No. 149051, June 30, 2006, 494 SCRA 153, 162-163), however, enumerates the instances where a writ of execution may be appealed: (1) the writ of execution varies the judgment; (2) there has been a change in the situation of the parties making execution inequitable or unjust; (3) execution is sought to be enforced against property exempt from execution; (4) it appears that the controversy has never been subject to the judgment of the court; (5) the terms of the judgment are not clear enough and there remains room for interpretation thereof; or (6) it appears that the writ of execution has been improvidently issued, or that it is defective in substance, or is issued against the wrong party, or that the judgment debt has been paid or otherwise satisfied, or the writ was issued without authority. In these exceptional circumstances, considerations of justice and equity dictate that there be some mode available to the party aggrieved of elevating the question to a higher court. That mode of elevation may be either by appeal (writ of error or certiorari), or by a special civil action of certiorari, prohibition, or mandamus.

The instant case falls under one of the exceptions cited above. The fact that Danilo has left the property under dispute is a change in the situation of the parties that would make execution inequitable or unjust. Moreover, there are exceptions that have been previously considered by the Court as meriting a relaxation of the rules in order to serve substantial justice. These are:  (1) matters of life, liberty, honor or property; (2) the existence of special or compelling circumstances; (3) the merits of the case; (4) a cause not entirely attributable to the fault or negligence of the party favored by the suspension of the rules; (5) a lack of any showing that the review sought is merely frivolous and dilatory; and (6) the other party will not be unjustly prejudiced thereby.  We find that Danilo’s situation merits a relaxation of the rules since special circumstances are involved; to determine if his allegation were true would allow a final resolution of the case.

Applicable, too, is what Sec. 5, Rule 135 of the Rules of Court states as one of the powers of a court:

Section 5. Inherent powers of the courts. Every court shall have power: xxx (g) To amend and control its process and orders so as to make them conformable to law and justice. Thus, the Court ruled in Mejia v. Gabayan (G.R. No. 149765,  April 12, 2005, 455 SCRA 499, 512): xxx The inherent power of the court carries with it the right to determine every question of fact and law which may be involved in the execution. The court may stay or suspend the execution of its judgment if warranted by the higher interest of justice. It has the authority to cause a modification of the decision when it becomes imperative in the higher interest of justice or when supervening events warrant it. The court is also vested with inherent power to stay the enforcement of its decision based on antecedent facts which show fraud in its rendition or want of jurisdiction of the trial court apparent on the record.

The writ of execution sought to be implemented does not take into consideration the circumstances that merit a modification of judgment. Given that there is a pending issue regarding the execution of judgment, the RTC should have afforded the parties the opportunity to adduce evidence to determine the period within which Danilo should pay monthly rentals before issuing the writ of execution in the instant case.  Should Danilo be unable to substantiate his claim that he vacated the premises in April 1994, the period to pay monthly rentals should be until June 19, 2007, the date he informed the CA that he had already left the premises.

(Parel v. Heirs of Prudencio, G.R. No. 192217, March 2, 2011)

Supreme Court Issues Rules on DNA Evidence

Finally, the rules on taking, using and preserving evidence are out. You can download and obtain a copy on this site.

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