2010 REMEDIAL LAW BAR QUESTIONS PART I I On March 12, 2008, Mabini was charged with Murder for

fatally stabbing Emilio. To pro e the !ualifying circumstance of e ident premeditation, the prosecution introduced on "ecember 11, 200# a te$t message, which Mabini%s estranged wife &regoria had sent to Emilio on the e e of his death, reading' ()oney, pa2tayin u ni Mabini. Mtgal n nyang plano i2. Mg ingat u bka ma tsugi k .* a. + subpoena ad testificandum was ser ed on &regoria for her to be presented for the purpose of identifying her cellphone and the te$t message. Mabini ob,ected to her presentation on the ground of marital pri ilege. -esol e. ./01 b. 2uppose Mabini%s ob,ection in !uestion + was sustained. The prosecution thereupon announced that it would be presenting Emilio%s wife &raciana to identify Emilio%s cellphone bearing &regoria%s te$t message. Mabini ob,ected again. -ule on the ob,ection. .201 c. 3f Mabini%s ob,ection in !uestion 4 was o erruled, can he ob,ect to the presentation of the te$t message on the ground that it is hearsay5 .201 d. 2uppose that shortly before he e$pired, Emilio was able to send a te$t message to his wife &raciana reading ( Nasaksak ako. D na me makahinga. Si Mabini ang may gawa ni2 .* 3s this te$t message admissible as a dying declaration5 E$plain. ./01 II On +ugust 1/, 2008, +, as shipper and consignee, loaded on the M/V Atlantis in 6egaspi 7ity 100,000 pieces of century eggs. The shipment arri ed in Manila totally damaged on +ugust 18, 2008. + filed before the Metropolitan Trial 7ourt .MeT71 of Manila a complaint against 4 2uper 6ines, 3nc. .4 6ines1, owner of the M/V Atlantis, for reco ery of damages amounting to 91:;,8##. )e attached to the complaint the 4ill of 6ading. a. 4 6ines filed a Motion to "ismiss upon the ground that the -egional Trial 7ourt has e$clusi e original ,urisdiction o er (all actions in admiralty and maritime* claims. 3n his -eply, + contended that while the action is indeed (admiralty and maritime* in nature, it is the amount of the claim, not the nature of the action, that go erns ,urisdiction. 9ass on the Motion to "ismiss. ./01 b. The MeT7 denied the Motion in !uestion +. 4 6ines thus filed an +nswer raising the defense that under the 4ill of 6ading it issued to +, its liability was limited to 910,000. +t the pre<trial conference, 4 6ines defined as one of the issues whether the stipulation limiting its liability to 910,000 binds +. + countered that this was no longer in issue as 4 6ines had failed to deny under oath the 4ill of 6ading. =hich of the parties is correct5 E$plain. ./01 c. On >uly 21, 200#, 4 6ines ser ed on + a (?otice to Ta@e "eposition,* setting the deposition on >uly 2#, 200# at 8'/0 a.m. at the office of its counsel in Ma@ati. + failed to appear at the deposition<ta@ing, despite notice. +s counsel for 4 6ines, how would you proceed5 ./01

III +nabel filed a complaint against 4 for unlawful detainer before the Municipal Trial 7ourt .MT71 of 7andaba, 9ampanga. +fter the issues had been ,oined, the MT7 dismissed the complaint for lac@ of ,urisdiction after noting that the action was one for accion publiciana. +nabel appealed the dismissal to the -T7 which affirmed it and accordingly dismissed her appeal. 2he ele ates the case to the 7ourt of +ppeals, which remands the case to the -T7. 3s the appellate court correct5 E$plain. ./01 IV A was dri ing the dump truc@ of B along 7attleya 2treet in 2ta. Maria, 4ulacan. "ue to his negligence, A hit and in,ured C who was crossing the street. 6awyer 6, who witnessed the incident, offered his legal ser ices to C. C, who suffered physical in,uries including a fractured wrist bone, underwent surgery to screw a metal plate to his wrist bone. On complaint of C, a criminal case for -ec@less 3mprudence -esulting in 2erious 9hysical 3n,uries was filed against A before the Municipal Trial 7ourt .MT71 of 2ta. Maria. +tty. 6, the pri ate prosecutor, did not reser e the filing of a separate ci il action. C subse!uently filed a complaint for "amages against A and B before the -egional Trial 7ourt of 9angasinan in Drdaneta where he resides. 3n his (7ertification +gainst Eorum 2hopping,* C made no mention of the pendency of the criminal case in 2ta. Maria. a. 3s C guilty of forum shopping5 .201 b. 3nstead of filing an +nswer, A and B mo e to dismiss the complaint for damages on the ground of litis pendentia. 3s the motion meritorious5 E$plain. .201 c. 2uppose only A was named as defendant in the complaint for damages, may he mo e for the dismissal of the complaint for failure of C to implead B as an indispensable party5 .201 d. A mo ed for the suspension of the proceedings in the criminal case to await the decision in the ci il case. Eor his part, B mo ed for the suspension of the ci il case to await the decision in the criminal case. =hich of them is correct5 E$plain. .201 e. +tty. 6 offered in the criminal case his affida it respecting what he witnessed during the incident. A%s lawyer wanted to cross<e$amine +tty. 6 who, howe er, ob,ected on the ground of lawyer<client pri ilege. -ule on the ob,ection. .201

V 7harisse, alleging that she was a resident of 6apu<6apu 7ity, filed a complaint for damages against +tlanta 4an@ before the -T7 of 6apu<6apu 7ity, following the dishonor of a chec@ she drew in fa or of 2hirley against her current account which she maintained in the ban@%s local branch. The ban@ filed a Motion to "ismiss the complaint on the ground that it failed to state a cause of action, but it was denied. 3t thus filed an +nswer. a. 3n the course of the trial, 7harisse admitted that she was a D2 citiFen residing in 6os +ngeles, 7alifornia and that she was temporarily billeted at the 9escado )otel in 6apu<6apu 7ity, drawing the ban@ to file another motion to dismiss, this time on the ground of improper enue, since 7harisse is not a resident of 6apu<6apu 7ity. 7harisse opposed the motion citing the (omnibus motion rule.* -ule on the motion. ./01 b. 2uppose 7harisse did not raise the (omnibus motion rule,* can the ,udge proceed to resol e the motion to dismiss5 E$plain. ./01 c. 2uppose the ,udge correctly denied the second motion to dismiss and rendered ,udgment in fa or of 7harisse, ordering the ban@ to pay her 9100,000 in damages plus legal interest. The ,udgment became final and e$ecutory in 2008. To date, 7harisse has not mo ed to e$ecute the ,udgment. The ban@ is concerned that its liability will increase with the delay because of the interest on the ,udgment award. +s counsel of the ban@, what mo e should you ta@e5 ./01

VI +nti!ue dealer Mercedes borrowed 91,000,000 from anti!ue collector 4en,amin. Mercedes issued a postdated chec@ in the same amount to 4en,amin to co er the debt. On the due date of the chec@, 4en,amin deposited it but it was dishonored. +s despite demands, Mercedes failed to ma@e good the chec@, 4en,amin filed in >anuary 200# a complaint for collection of sum of money before the -T7 of "a ao. Mercedes filed in Eebruary 200# her +nswer with 7ounterclaim, alleging that before the filing of the case, she and 4en,amin had entered into a dacion en pago agreement in which her intage 91,000,000 Role watch which was ta@en by 4en,amin for sale on commission was applied to settle her indebtednessG and that she incurred e$penses in defending what she termed a (fri olous lawsuit.* 2he accordingly prayed for 9H0,000 damages. a. 4en,amin soon after mo ed for the dismissal of the case. The trial court accordingly dismissed the complaint. +nd it also dismissed the 7ounterclaim. Mercedes mo ed for a reconsideration of the dismissal of the 7ounterclaim. 9ass upon Mercedes% motion. ./01 b. 2uppose there was no 7ounterclaim and 4en,amin%s complaint was not dismissed, and ,udgment was rendered against Mercedes for 91,000,000. The ,udgment became final and e$ecutory and a writ of e$ecution was correspondingly issued. 2ince Mercedes did not ha e cash to settle the ,udgment debt, she offered her Toyota 7amry model 2008 alued at 91.2 million. The 2heriff, howe er, on re!uest of 4en,amin, seiFed Mercedes% 1;th century i ory image of the !a Sag"ada #amilia estimated to be worth o er 91,000,000. =as the 2heriff%s action in order5 ./01 VII +s 7icero was wal@ing down a dar@ alley one midnight, he saw an (owner<type ,eepney* approaching him. 2ensing that the occupants of the ehicle were up to no good, he darted into a corner and ran. The occupants of the ehicle I elements from the =estern 9olice "istrict I ga e chase and apprehended him. The police apprehended 7icero, fris@ed him and found a sachet of 0.0# gram of shabu tuc@ed in his waist and a 2wiss @nife in his secret poc@et, and detained him thereafter. 3s the arrest and body<search legal5 ./01

PART II VIII "omini!ue was accused of committing a iolation of the )uman 2ecurity +ct. )e was detained incommunicado$ depri ed of sleep, and sub,ected to water torture. )e later allegedly confessed his guilt ia an affida it. +fter trial, he was ac!uitted on the ground that his confession was obtained through torture, hence, inadmissible as e idence. 3n a subse!uent criminal case for torture against those who depri ed him of sleep and sub,ected him to water torture, "omini!ue was as@ed to testify and to, among other things, identify his abo e<said affida it of confession. +s he was about to identify the affida it, the defense counsel ob,ected on the ground that the affida it is a fruit of a poisonous tree. 7an the ob,ection be sustained5 E$plain. ./01 IX 3n a prosecution for rape, the defense relied on "eo$yribonucleic +cid ."?+1 e idence showing that the semen found in the pri ate part of the ictim was not identical with that of the accused%s. +s pri ate prosecutor, how will you dispute the eracity and accuracy of the results of the "?+ e idence5 ./01 X Marinella is a ,unior officer of the +rmed Eorces of the 9hilippines who claims to ha e personally witnessed the mal ersation of funds gi en by D2 authorities in connection with the %alikatan e$ercises. Marinella alleges that as a result of her e$posJ, there are operati es within the military who are out to @ill her. 2he files a petition for the issuance of a writ of amparo against, among others, the 7hief of 2taff but without alleging that the latter ordered that she be @illed. +tty. "aro, counsel for the 7hief of 2taff, mo es for the dismissal of the 9etition for failure to allege that his client issued any order to @ill or harm Marinella. -ule on +tty. "aro%s motion. E$plain. ./01 XI A was arrested for the alleged murder of a :<year old lad. )e was read his Mi"anda rights immediately upon being apprehended. 3n the course of his detention, A was sub,ected to three hours of non<stop interrogation. )e remained !uiet until, on the /rd hour, he answered (yes* to the !uestion of whether (he prayed for forgi eness for shooting down the boy.* The trial court, interpreting A%s answer as an admission of guilt, con icted him. On appeal, A%s counsel faulted the trial court in its interpretation of his client%s answer, arguing that A in o@ed his Mi"anda rights when he remained !uiet for the first two hours of !uestioning. -ule on the assignment of error. ./01

XII 3n a prosecution for murder, the prosecutor as@s accused "arwin if he had been pre iously arrested for iolation of the +nti< &raft and 7orrupt 9ractices +ct. +s defense counsel, you ob,ect. The trial court as@s you on what groundKs. -espond. ./01 XIII 9olicemen brought 6orenFo to the 9hilippine &eneral )ospital .9&)1 and re!uested one of its surgeons to immediately perform surgery on him to retrie e a pac@et of 10 grams of shabu which they alleged was swallowed by 6orenFo. 2uppose the 9&) agreed to, and did perform the surgery, is the pac@age of shabu admissible in e idence5 E$plain. ./01 XIV 7Farina died single. 2he left all her properties by will to her friend "u!ueFa. 3n the will, 7Farina stated that she did not recogniFe Marco as an adopted son because of his disrespectful conduct towards her. "u!ueFa soon instituted an action for probate of 7Farina%s will. Marco, on the other hand, instituted intestate proceedings. 4oth actions were consolidated before the -T7 of 9asig. On motion of Marco, "u!ueFa%s petition was ordered dismissed on the ground that the will is oid for depri ing him of his legitime. +rgue for "u!ueFa. .H01 XV 9edrillo, a Eil<+m permanent resident of 6os +ngeles, 7alifornia at the time of his death, be!ueathed to =inston a sum of money to purchase an annuity. Dpon 9edrillo%s demise, his will was duly probated in 6os +ngeles and the specified sum in the will was in fact used to purchase an annuity with ABL of )ong Mong so that =inston would recei e the e!ui alent of D2N1,000 per month for the ne$t 1H years. =anting to recei e the principal amount of the annuity, =inston files for the probate of 9edrillo%s will in the Ma@ati -T7. +s prayed for, the court names =inston as administrator of the estate. =inston now files in the Ma@ati -T7 a motion to compel ABL to account for all sums in its possession forming part of 9edrillo%s estate. -ule on the motion. .H01 XVI 2al Mineo died intestate, lea ing a 91 billion estate. )e was sur i ed by his wife "ayanara and their fi e children. "ayanara filed a petition for the issuance of letters of administration. 7harlene, one of the children, filed an opposition to the petition, alleging that there was neither an allegation nor genuine effort to settle the estate amicably before the filing of the petition. -ule on the opposition. .H01

XVII =hat is ("es &udicata in prison grey*5 .201 XVIII =hile window<shopping at the mall on +ugust 8, 2008, "ante lost his organiFer including his credit card and billing statement. Two days later, upon reporting the matter to the credit card company, he learned that a one<way airplane tic@et was purchased online using his credit card for a flight to Milan in mid< +ugust 2008. Dpon e$tensi e in!uiry with the airline company, "ante disco ered that the plane tic@et was under the name of one "ina Meril. "ante approaches you for legal ad ice. a. =hat is the proper procedure to pre ent "ina from lea ing the 9hilippines5 .201 b. 2uppose an 3nformation is filed against "ina on +ugust 12, 2008 and she is immediately arrested. =hat pieces of electronic e idence will "ante ha e to secure in order to pro e the fraudulent online transaction5 .201 XIX 1. Enumerate the re!uisites of a (trial in absentia * .201 and a (promulgation of ,udgment in absentia* .201. 2. ?ame two instances where the trial court can hold the accused ci illy liable e en if he is ac!uitted. .201 XX +Fenith, the cashier of Temptation 3n estments, 3nc. .Temptation, 3nc.1 with principal offices in 7ebu 7ity, is e!ually hated and lo ed by her co<employees because she e$tends cash ad ances or ('ales * to her colleagues whom she li@es. One morning, +Fenith disco ers an anonymous letter inserted under the door of her office threatening to @ill her. +Fenith promptly reports the matter to her superior >oshua, who thereupon conducts an internal in estigation to erify the said threat. 7laiming that the threat is real, Temptation, 3nc. opts to transfer +Fenith to its 9alawan Office, a mo e she resists in iew of the company%s refusal to disclose the results of its in estigation. "ecrying the mo e as a irtual depri ation of her employment, +Fenith files a petition for the issuance of a writ of habeas data before the -egional Trial 7ourt .-T71 to en,oin Temptation, 3nc. from transferring her on the ground that the company%s refusal to pro ide her with a copy of the in estigation results compromises her right to life, liberty and pri acy. -esol e the petition. E$plain. .H01 N()*+N, #(!!(-S.