Friday, July 25, 2008

How to combat procrastination

After months of preparation for the Bar exam, you may find yourself feeling anxious about the level of your preparation and even get tempted to postpone your taking the exam at this late stage. While I myself have decided to postpone my taking the exam this year, I did it two months ago after my first reading of all Bar subjects, after an honest assessment of what I still need to do to have a decent shot at passing the exam. Only after that did I decide to work first in a law firm and self-review for another year to further prepare me for 2009.

For those who have come this far, a month before the Bar exam, I guess there's no turning back. Here's an advice I got from the BlogWorld on fighting those anxiety attacks and keep you from dropping out at this stage. Find yourself a bar exam buddy, some sort of a workout buddy, but for the bar. And promise each other that neither one of you will let the other back out.

Lots of luck! And God bless!

Wednesday, July 23, 2008

Jurisdiction of HLURB vis-a-vis that of the trial court

Political Law, Administrative Law

Arranza vs. BF Homes [G.R. No. 131683. June 19, 2000]

The boom in the real estate business all over the country resulted in more litigation between subdivision owners/developers and lot buyers with the issue of the jurisdiction of the NHA or the HLURB over such controversies as against that of regular courts. In the cases that reached this Court, the ruling has consistently been that the NHA or the HLURB has jurisdiction over complaints arising from contracts between the subdivision developer and the lot buyer or those aimed at compelling the subdivision developer to comply with its contractual and statutory obligations to make the subdivision a better place to live in.

Notably, in Antipolo Really Corporation v. National Housing Authority one of the issues raised by the homeowners was the failure of Antipolo Realty to develop the subdivision in accordance with its undertakings under the contract to sell. Such undertakings include providing the subdivision with concrete curbs and gutters, underground drainage system, asphalt paved roads, independent water system, electrical installation with concrete posts, landscaping and concrete sidewalks, developed park or amphitheater and 24-hour security guard service. The Court held that the complaint filed by the homeowners was within the jurisdiction of the NHA.

Similarly, in Alcasid v. Court of Appeals, the Court ruled that the HLURB, not the RTC, has jurisdiction over the complaint of lot buyers for specific performance of alleged contractual and statutory obligations of the defendants, to wit, the execution of contracts of sale in favor of the plaintiffs and the introduction in the disputed property of the necessary facilities such as asphalting and street lights.

In the case at bar, petitioners' complaint is for specific performance to enforce their rights as purchasers of subdivision lots as regards rights of way, water, open spaces, road and perimeter wall repairs, and security. Indisputably then, the HLURB has jurisdiction over the complaint.

The fact that respondent is under receivership does not divest the HLURB of that jurisdiction…The appointment of a receiver does not dissolve a corporation, nor does it interfere with the exercise of its corporate rights.

Osea vs. Ambrosio [G.R. No. 162774. April 7, 2006]

This Court has thus consistently held that complaints for breach of contract or specific performance with damages filed by a subdivision lot or condominium unit buyer against the owner or developer fall under the exclusive jurisdiction of the HLURB.

Moreover, under the doctrine of primary administrative jurisdiction, courts cannot or will not determine a controversy where the issues for resolution demand the exercise of sound administrative discretion requiring the special knowledge, experience, and services of the administrative tribunal to determine technical and intricate matters of fact.

Under the circumstances attendant to the case, the HLURB has the expertise to determine the basic technical issue of whether the alleged deviations from the building plans and the technical specifications affect the soundness and structural strength of the house.

Ridgewood vs. Belaos [G.R. No. 166751. June 8, 2006]

Section 1 of Presidential Decree No. 1344 provides for the jurisdiction of HLURB (then National Housing Authority).

The Court held in Roxas v. Court of Appeals that the mere relationship between the parties, i.e., that of being subdivision owner/developer and subdivision lot buyer, does not automatically vest jurisdiction in the HLURB. For an action to fall within the exclusive jurisdiction of the HLURB, the decisive element is the nature of the action as enumerated in Section 1 of P.D. No. 1344. The HLURB has jurisdiction over complaints aimed at compelling the subdivision developer to comply with its contractual and statutory obligations.

The complaint filed by respondent against petitioner was one for damages. It prayed for the payment of moral, actual and exemplary damages by reason of petitioner's malicious encashment of the checks even after the rescission of the contract to sell between them. Respondent claimed that because of petitioner's malicious and fraudulent acts, he suffered humiliation and embarrassment in several banks, causing him to lose his credibility and good standing among his colleagues. Such action falls within the jurisdiction of regular courts, not the HLURB.

Saturday, July 12, 2008

How to Deal with the Approaching Bar Exam

Following are pieces of advice from the BlogWorld on dealing with the approaching Bar exam.

Dukelawref says above all else, remember this: You know more than you think you do. says that in the final stretch, you must memorize legal rules. You must know each element of each important rule as if it were your most frequently used password. "This last home stretch, these next weeks, is the time to memorize. Too much earlier and you may have forgotten things."

"Read and re-read rule statements aloud. Look at them, listen to them, write them out, test yourself, have others test you. Engage fully in the memorization process."

For others well supported by friends and family, tell them that if they ever give you something to get by, you need:

- a time machine that provides extra study time during the day
- a time machine if in case you need to return to last month and then do the last six weeks over, this time without procrastinating
- kidding aside, a cushion to sit on (library chairs can be very uncomfortable after long periods of time)
- prepared meals
- a collection of pens and pencils for the Bar Exam (exam takers seem to feel the need to bring in a wide collection of writing instruments, preparing for the full days of non-stop writing)
- magic herbs that increase memory

These were the suggestions by Invadingnyc.

Friday, July 11, 2008

Working in a law office

I now work in a law office. Last month, after the first reading of all Bar subjects, I have decided to hold out my taking the exam until 2009. As I have intended, now I work in a law office to hone my skills in becoming a lawyer I want to be. I didn't take up law just to get a law degree and a title of "Attorney." So now I have put myself in the grill of some sort of an apprenticeship.

In some countries, or was it the practice in Europe in the past, students before becoming lawyers have to be under the tutelage of a senior member of the Bar for at least a year, a sort of an apprenticeship. There were no Bar exams to be taken.

In our case, since we're following the American model, law graduates have to pass the Bar exam before getting a license to practice law. So far this is the best way to ensure professional standards in the practice of law. However, most often than not, law practice is very different from what law students learn in law school (because students have to be taught everything in law school in just four years).

This is what I learned in the short time that I have been working now in a law office. Assigned to draft pleadings and other legal documents, I have to reexamine carefully what I was supposed to have already learned in law school. It's not just my and my school's reputation before my lawyer-boss that are at stake. Most importantly, it is the client's cause that is in line, a cause that might suffer by any mistake on my part in drafting his pleading. The basic lessons I learned in law school always come in handy but still nothing beats really practicing the real thing.

One more year of reviewing the books, and at most eight months of law office work, then I can say I'll be much closer to my goal.

Tuesday, July 8, 2008

Contents of a Pre-trial Brief

Pursuant to Rule 18 Sec. 6 of The Rules of Civil Procedure and A.M. No. 03-1-09-SC on "Guidelines to be Observed by Trial Court Judges and Clerks of Court in the Conduct of Pre-Trial and Use of Deposition-Discovery Measures," Pre-Trial Brief must be submitted at least three (3) days before the pre-trial and must contain the following:

1) A statement of their willingness to enter into an amicable settlement indicating the desired terms thereof or to submit the case to any of the alternative modes of dispute resolution;

2) A summary of admitted facts and proposed stipulation of facts;

3) The issues to be tried or resolved;

4) The documents or exhibits to be presented, stating the purpose thereof. (No evidence shall be allowed to be presented and offered during the trial in support of a party's evidence-in-chief other than those that had been earlier identified and pre-marked during the pre-trial, except if allowed by the court for good cause shown);

5) A manifestation of their having availed or their intention to avail themselves of discovery procedures or referral to commissioners; and

6) The number and names of the witnesses, the substance of their testimonies, and the approximate number of hours that will be required by the parties for the presentation of their respective witnesses.

Saturday, July 5, 2008

The Importance of Filing a Pre-trial Brief

Soriano vs. Reyes
A.C. 4676, May 4, 2006

As to Civil Case No. 20-465-90, records show that it was dismissed for failure of respondent to file the pre-trial brief.

Respondent’s failure to file the pre-trial brief constitutes inexcusable negligence. The importance of filing a pre-trial brief cannot be gainsaid. For one, the lawyers are compelled to prepare their cases in advance. They eliminate haphazard preparation. Since pre-trial is a serious business of the court, preparation of the lawyers and parties for the pre-trial in both questions of fact and of law cannot be overemphasized as an essential requirement for a pre-trial conference. They enable both parties to view the documentary evidence of the other even before they are presented in court. They enable the parties to know the testimonies of each other’s witnesses. Pre-trial briefs also apprise the courts of the additional points the parties are willing to stipulate upon, or the additional points which could be inquired into for the purpose of additional stipulations. They also apprise the court of the respective demands of the parties, thus, enabling the court to discuss more intelligently an amicable settlement between or among the parties. The failure to submit a pre-trial brief could very well, then, be fatal to the case of the client as in fact it is a ground for dismissal of the case. For this reason, respondent’s failure to submit the pre-trial brief to the court within the given period constitutes negligence which entails disciplinary action. Not only is it a dereliction of duty to his client but to the court as well. Hence, this Court, in Spouses Galen v. Atty. Paguirigan, explained:

An attorney is bound to protect his client’s interest to the best of his ability and with utmost diligence. A failure to file brief for his client certainly constitutes inexcusable negligence on his part. The respondent has indeed committed a serious lapse in the duty owed by him to his client as well as to the Court not to delay litigation and to aid in the speedy administration of justice.

The Original Concept of Forum Shopping: From Legitimate Practice to Malpractice

First Philippine International Bank vs. CA
GR 115849, 24 January 1996
Panganiban (J)

Forum-shopping originated as a concept in private international law, where non-resident litigants are given the option to choose the forum or place wherein to bring their suit for various reasons or excuses, including to secure procedural advantages, to annoy and harass the defendant, to avoid overcrowded dockets, or to select a more friendly venue. To combat these less than honorable excuses, the principle of forum non conveniens was developed whereby a court, in conflicts of law cases, may refuse impositions on its jurisdiction where it is not the most “convenient” or available forum and the parties are not precluded from seeking remedies elsewhere.

In this light, Black’s Law Dictionary 13 says that forum shopping “occurs when a party attempts to have his action tried in a particular court or jurisdiction where he feels he will receive the most favorable judgment or verdict.” Hence, according to Words and Phrases, “a litigant is open to the charge of ‘forum shopping’ whenever he chooses a forum with slight connection to factual circumstances surrounding his suit, and litigants should be encouraged to attempt to settle their differences without imposing undue expense and vexatious situations on the courts”.

In the Philippines, forum shopping has acquired a connotation encompassing not only a choice of venues, as it was originally understood in conflicts of laws, but also to a choice of remedies. As to the first (choice of venues), the Rules of Court, for example, allow a plaintiff to commence personal actions “where the defendant or any of the defendants resides or may be found, or where the plaintiff or any of the plaintiffs resides, at the election of the plaintiff” (Rule 4, Sec. 2 [b]). As to remedies, aggrieved parties, for example, are given a choice of pursuing civil liabilities independently of the criminal, arising from the same set of facts. A passenger of a public utility vehicle involved in a vehicular accident may sue on culpa contractual, culpa aquiliana or culpa criminal — each remedy being available independently of the others — although he cannot recover more than once.

“In either of these situations (choice of venue or choice of remedy), the litigant actually shops for a forum of his action. This was the original concept of the term forum shopping.

“Eventually, however, instead of actually making a choice of the forum of their actions, litigants, through the encouragement of their lawyers, file their actions in all available courts, or invoke all relevant remedies simultaneously. This practice had not only resulted to (sic) conflicting, adjudications among different courts and consequent confusion enimical (sic) to an orderly administration of justice. It had created extreme inconvenience to some of the parties to the action.

“Thus, ‘forum shopping’ had acquired a different concept - which is unethical professional legal practice. And this necessitated or had given rise to the formulation of rules and canons discouraging or altogether prohibiting the practice.”

What therefore originally started both in conflicts of laws and in our domestic law as a legitimate device for solving problems has been abused and misused to assure scheming litigants of dubious reliefs.

To avoid or minimize this unethical practice of subverting justice, the Supreme Court, as already mentioned, promulgated Circular 28-91. And even before that, the Court had proscribed it in the Interim Rules and Guidelines issued on January 11, 1983 and had struck down in several cases the inveterate use of this insidious malpractice. Forum shopping as “the filing of repetitious suits in different courts” has been condemned by Justice Andres R. Narvasa (now Chief Justice) in Minister of Natural Resources, et al., vs. Heirs of Orval Hughes, et al., “as a reprehensible manipulation of court processes and proceedings . . .” When does forum shopping take place?

“There is forum shopping whenever, as a result of an adverse opinion in one forum, a party seeks a favorable opinion (other than by appeal or certiorari) in another. The principle applies not only with respect to suits filed in the courts but also in connection with litigations commenced in the courts while an administrative proceeding is pending, as in this case, in order to defeat administrative processes and in anticipation of an unfavorable administrative ruling and a favorable court ruling. This is specially so, as in this case, where the court in which the second suit was brought, has no jurisdiction.”

The test for determining whether a party violated the rule against forum shopping has been laid down in the 1986 case of Buan vs. Lopez, also by Chief Justice Narvasa, and that is, forum shopping exists where the elements of litis pendentia are present or where a final judgment in one case will amount to res judicata in the other, as follows:

“There thus exists between the action before this Court and in the RTC identity of parties, or at least such parties as represent the same interests in both actions, as well as identity of rights asserted and relief prayed for, the relief being founded on the same facts, and the identity on the two preceding particulars is such that any judgment rendered in the other action, will, regardless of which party is successful, amount to res adjudicata in the action under consideration: all the requisites, in fine, of auter action pendant.”

xxx xxx xxx

“As already observed, there is between the action at bar and RTC case, an identity as regards parties, or interests represented, rights asserted and relief sought, as well as basis thereof, to a degree sufficient to give rise to the ground for dismissal known as auter action pendant or lis pendens. That same identity puts into operation the sanction of twin dismissals just mentioned. The application of this sanction will prevent any further delay in the settlement of the controversy which might ensue from attempts to seek reconsideration of or to appeal from the Order of the Regional Trial Court in Civil Case No. 86-36563 promulgated on July 15, 1986, which dismissed the petition upon grounds which appear persuasive.”

Consequently, where a litigant (or one representing the same interest or person) sues the same party against whom another action or actions for the alleged violation of the same right and the enforcement of the same relief is/are still pending, the defense of litis pendencia in one case is a bar to the others; and, a final judgment in one would constitute res judicata and thus would cause the dismissal of the rest. In either case, forum shopping could be cited by the other party as a ground to ask for summary dismissal of the two 20 (or more) complaints or petitions, and for the imposition of the other sanctions, which are direct contempt of court, criminal prosecution, and disciplinary action against the erring lawyer.

Applying the foregoing principles in the case before us and comparing it with the Second Case, it is obvious that there exist identity of parties or interests represented, identity of rights or causes and identity of reliefs sought.

Very simply stated, the original complaint in the court a quo which gave rise to the instant petition was filed by the buyer (herein private respondent and his predecessors-in-interest) against the seller (herein petitioners) to enforce the alleged perfected sale of real estate. On the other hand, the complaint in the Second Case seeks to declare such purported sale involving the same real property “as unenforceable as against the Bank”, which is the petitioner herein. In other words, in the Second Case, the majority stockholders, in representation of the Bank, are seeking to accomplish what the Bank itself failed to do in the original case in the trial court. In brief, the objective or the relief being sought, though worded differently, is the same, namely, to enable the petitioner Bank to escape from the obligation to sell the property to respondent. In Danville Maritime, Inc. vs. Commission on Audit, this Court ruled that the filing by a party of two apparently different actions, but with the same objective, constituted forum shopping:

“In the attempt to make the two actions appear to be different, petitioner impleaded different respondents therein — PNOC in the case before the lower court and the COA in the case before this Court and sought what seems to be different reliefs. Petitioner asks this Court to set aside the questioned letter-directive of the COA dated October 10, 1988 and to direct said body to approve the Memorandum of Agreement entered into by and between the PNOC and petitioner, while in the complaint before the lower court petitioner seeks to enjoin the PNOC from conducting a rebidding and from selling to other parties the vessel “T/T Andres Bonifacio”, and for an extension of time for it to comply with the paragraph 1 of the memorandum of agreement and damages. One can see that although the relief prayed for in the two (2) actions are ostensibly different, the ultimate objective in both actions is the same, that is, the approval of the sale of vessel in favor of Petitioner, and to overturn the letter-directive of the COA of October 10, 1988 disapproving the sale.”

In an earlier case, but with the same logic and vigor, we held:

“In other words, the filing by the petitioners of the instant special civil action for certiorari and prohibition in this Court despite the pendency of their action in the Makati Regional Trial Court, is a species of forum-shopping. Both actions unquestionably involve the same transactions, the same essential facts and circumstances. The petitioners’ claim of absence of identity simply because the PCGG had not been impleaded in the RTC suit, and the suit did not involve certain acts which transpired after its commencement, is specious. In the RTC action, as in the action before this Court, the validity of the contract to purchase and sell of September 1, 1986, i.e., whether or not it had been efficaciously rescinded, and the propriety of implementing the same (by paying the pledgee banks the amount of their loans, obtaining the release of the pledged shares, etc.) were the basic issues. So, too, the relief was the same: the prevention of such implementation and/or the restoration of the status quo ante. When the acts sought to be restrained took place anyway despite the issuance by the Trial Court of a temporary restraining order, the RTC suit did not become functus oficio. It remained an effective vehicle for obtention of relief; and petitioners’ remedy in the premises was plain and patent: the filing of an amended and supplemental pleading in the RTC suit, so as to include the PCGG as defendant and seek nullification of the acts sought to be enjoined but nonetheless done. The remedy was certainly not the institution of another action in another forum based on essentially the same facts. The adoption of this latter recourse renders the petitioners amenable to disciplinary action and both their actions, in this Court as well as in the Court a quo, dismissible.”

Wednesday, July 2, 2008

Spend less time studying

Our Bar reviewer has said that he's willing to bet his university salary that bar examinees will start to panic when August comes. In one bar review institute, the last two days of lecture in July is alloted for "How to deal with stress."

There indeed is so much stress in preparing for and taking the bar, but much of it, according to many lawyer-friends, are unnecessary. Study hard, take it seriously, but not too seriously that you will panic over the details you have not gone through or have forgotten, says a lawyer-friend of mine.

One important advice that may take some of that stress load is to remember that all you really have to do is pass. Meaning, you don't need to maximize your score. Every point you score above the passing score of 75 may indicate that you've spent more than the required time studying that subject. That's good in pulling up your average, but not when it is at the expense of other subjects. Follow this advice, and as one blogger pointed out, you'll save a lot of time and stress in case you have not effectively covered all subjects. In other words, do not spend so much time on one or some selected subjects at the expense of the other subjects. For what good will a 90 in Remedial Law do if you got a DQ in Taxation.

Two more months to go! Good luck!


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