LA FUNDACIÓN: CONCEPTO Y NOTAS CARACTERÍSTICAS

Injunction is a judicial writ, process, or proceeding whereby a party is ordered to do or refrain from doing a particular act

155 Preliminary Injunction is an ancillary or preventive remedy where a court requires a person, a party or even a court or tribunal either to refrain from (prohibitory), or to perform (mandatory), particular acts during the pendency of an action. It is only a temporary remedy.

Injunction as Main

Action Preliminary Injunction Independent

Action

Ancillary; exists only as part or incident of an independent action or proceeding merits can be heard Assailed by timely uncontested status which preceded the pending controversy) for [Knecht v. CA, (1993)]

The injunction should not establish new relations between the parties but merely re-establish the pre-existing relationship between them.

Temporary Restraining Order

A TRO is issued in order to preserve the status quo until the hearing of the application for preliminary injunction.

[Bacolod City Water v. Labayen (2004)]

An application for a TRO shall be acted upon only after all parties are heard in a summary hearing, which shall be conducted within 24 hours after the sheriff's return of service and/or the records are received by the branch selected by raffle. [Rule 58, Sec.4]

Status Quo Order

A status quo order is in the nature of a cease and desist order. It is resorted to when the projected proceedings in the case made the conservation of the status quo desirable or

essential, but the affected party neither sought such relief nor did the allegations in his pleading sufficiently make out a case for a temporary restraining order.

It does NOT direct the doing or undoing of acts but is an order to maintain the last, actual, peaceable and uncontested state of things which preceded the controversy.

B.2 REQUISITES

(1) There must be a verified application (2) The applicant must establish:

(a) The existence of a clear and otherwise exempted by the court

(4) As to a writ of preliminary injunction, there must be notice and hearing

B.3 KINDS OF INJUNCTION

(1) Preliminary Preventive Injunction – Prohibits the performance of a particular act or acts

(2) Preliminary Mandatory Injunction – Requires the performance of a particular act or acts. This is an extreme remedy

156 The act had not yet

been performed

The act has already been performed and this act has violated the rights of another Status Quo is

preserved Status Quo is

restored

When preventive injunction does not lie;

examples:

(1) To restrain collection of taxes [Valley Trading v. CA](1989), except where there are special circumstances that bear the existence of irreparable injury. [Churchill

& Tait v. Rafferty (1915)]

(2) To restrain the sale of conjugal properties where the claim can be annotated on the title as a lien, such as the husband’s obligation to give support.

[Saavedra v. Estrada (1931)]

(3) To restrain a mayor proclaimed as duly elected from assuming his office. [Cereno v. Dictado (1988)]

(4) To restrain registered owners of the property from selling, disposing and encumbering their property just because the respondents had executed Deeds of Assignment in favor of petitioner. [Tayag v. Lacson (2004)]

(5) Against consummated acts. [PNB v. Adi (1982); Rivera v. Florendo (1986); Ramos, Sr. v. CA (1989)]

When mandatory injunction does not lie;

examples

(1) To compel cohabitation [Arroyo v.

Vasquez (1921)]

(2) Cancellation of attachment [Levy Hermanos v. Lacson (1940)]

(3) Release imported goods pending hearing before the Commissioner of Customs.

[Commissioner of Customs v. Cloribel (1967)]

(4) To take property out of the possession or control of one party and place it into that of another whose title has not clearly been established [Pio v. Marcos (1974)]

B.4 ISSUANCE OF WRIT

When: It may be issued at any stage prior to the judgment or final order

By Whom: It may be granted by the court where the action or proceeding is pending. If the action or proceeding is pending in the Court of Appeals or in the Supreme Court, it may be issued by said court or any member thereof. [Rule 58, Sec. 2]

B.5 GROUNDS FOR ISSUANCE OF PRELIMINARY INJUNCTION

[Rule 58, Sec. 3]

Preliminary injunction may be granted when it is established:

(1) That applicant is entitled to the relief demanded, which consists in whole or in part in restraining commission or continuance of an act, or in requiring the performance of an act, either for a limited time or perpetually;

(2) That commission, continuance, or non-performance of the act complained of during the litigation would probably work injustice to applicant; or

(3) That a party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual

B.6 GROUNDS FOR OBJECTION, OR MOTION FOR DISSOLUTION

[Rule 58, Sec. 6]

The application for injunction or restraining order may be denied:

(1) Upon a showing of its insufficiency.

o Application is not verified

o Application is not supported by the grounds in Sec. 3

o Application does not show facts entitling the applicant to the relief demanded

157 o Application is not supported by the

required bond

(2) On other grounds upon affidavits of the party enjoined, which may be opposed by the applicant also by affidavits

(3) If it appears after hearing that, although applicant is entitled to injunction or TRO, the issuance or continuance thereof, would cause irreparable damage to party enjoined while applicant can be fully compensated for such damages as he may suffer. In this case, the party enjoined shall file a bond

o Amount: Fixed by Court

o Undertaking That he will pay all damages which the applicant may suffer by denial or dissolution of the injunction or TRO

If it appears that the extent of the preliminary injunction or restraining order granted is too great, it may be modified.

B.7 TEMPORARY RESTRAINING ORDER

General Rule: Before preliminary injunction may be granted, there must be prior notice to person sought to be enjoined and there must be a hearing

Procedure: When an application for a writ of preliminary injunction or TRO is included in a complaint or initiatory pleading, the case, if filed in a multiple-sala, shall proceed as follows:

(1) Verified complaint and bond is filed (2) Determine if there is great or irreparable

injury or extreme urgency, which warrants the issuance of a TRO

o If yes, go to Procedure for Issuance of TRO

(3) In both cases, Notice shall then be served to the party sought to be enjoined. There must be prior and contemporaneous service of summons (exceptions also apply)

Procedure for Issuance of TRO

(1) If it appears that great or irreparable injury would result to the applicant before the matter can be heard on notice:

(a) Summary hearing on the application of the TRO within 24 hours after sheriff’s return of service and/or records are received by the branch selected by raffle

(b) The court may issue a TRO effective for 20 days from service on the party sought to be enjoined

Within the 20 day period:

o The applicant must show cause why injunction should not be granted o The court will determine WON the

preliminary injunction shall be granted. If granted, the court will issue the corresponding order (2) If the matter is of extreme urgency and

the applicant will suffer grave injustice and irreparable injury

(a) A TRO may be issued ex parte (after raffling of case) ordered by the Executive judge of a multiple sala court or the presiding judge of a single-sala court

(b) Effective for 72 hours from issuance (i) The applicant must then

immediately comply with Sec. 4 as to service of summons and documents

(ii) The Executive Judge shall then summon the parties to a conference and raffle the case in their presence

Within the 72-hr period

o The Presiding Judge before whom the case is pending shall conduct a summary hearing to determine whether the TRO shall be extended until application for preliminary injunction can be heard

o In no case shall the total period of effectivity of the TRO exceed 20 days, including the original 72 hours

158 Effectivity of TRO

o Effectivity is not extendible. No court shall have authority to extend or renew the same on the ground for which it was issued

o If issued by the CA – effective for 60 days from service

o If issued by SC – effective until further orders

TRO ISSUED BY EXECUTIVE JUDGE (MULTI-SALA) OR ORDINARY JUDGE (SINGLE-SALA)

TRO ISSUED BY ORDINARY JUDGE Matter is of extreme

urgency and that grave injustice and irreparable injury will arise unless immediately issued

If it appears that great or irreparable injury would result

May be issued ex parte

A summary hearing must be done before issuance

Good for 72 hours Good for 20 days including first 72 hours

Issued before

raffling Issued after raffling Issued ex parte Issued after

summary hearing Upon the expiration of the non-extendible period, the TRO is automatically terminated.

No judicial declaration necessary.

B.8 IN RELATION TO RA 8975

Sec. 3, RA 8975: No court, except the Supreme Court, shall issue any TRO, preliminary injunction or preliminary mandatory injunction against the government, or any of its subdivisions, officials or any person or entity, whether public or private acting under the government direction, to restrain, prohibit or compel the following acts:

(1) Acquisition, clearance and development of the right-of-way and/or site or location of any national government project

(2) Bidding or awarding of contract/ project of the national government as defined under Section 2 hereof;

(3) Commencement prosecution, execution, implementation, operation of any such contract or project;

(4) Termination or rescission of any such contract/project; and

(5) The undertaking or authorization of any other lawful activity necessary for such contract/project.

This prohibition shall apply in all cases, disputes or controversies instituted by a private party, including but not limited to cases filed by bidders or those claiming to have rights through such bidders involving such contract/project.

This prohibition shall not apply when the matter is of extreme urgency involving a constitutional issue, such that unless a temporary restraining order is issued, grave injustice and irreparable injury will arise. The applicant shall file a bond, in an amount to be fixed by the court, which bond shall accrue in favor of the government if the court should finally decide that the applicant was not entitled to the relief sought.

Any TRO, preliminary injunction, or preliminary mandatory injunction issued in violation of Sec. 3 is void and of no force and effect. [Sec 4]

B.19 RULE ON PRIOR OR CONTEMPORANEOUS SERVICE OF SUMMONS

When an application for a writ of preliminary injunction or a temporary restraining order is included in a complaint or any initiatory pleading, the case, if filed in a multiple-sala court, shall be raffled only after notice to and in the presence of the adverse party or the person to be enjoined. In any event, such notice shall be preceded, or contemporaneously accompanied, by service

159 of summons, together with a copy of the complaint or initiatory pleading and the applicant's affidavit and bond, upon the adverse party in the Philippines.

Exception:

Where the summons could not be served personally or by substituted service despite diligent efforts, or the adverse party is a resident of the Philippines temporarily absent therefrom or is a nonresident thereof, the requirement of prior or contemporaneous service of summons shall not apply. [Rule 58, Sec.4] The executive judge of a multiple-sala court or the presiding judge of a single sala court may issue ex parte a TRO effective for only 72 hours from issuance if the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury.

However, he shall immediately comply with the provisions of Rule 38, Sec. 4 as to service of summons and the documents to be served therewith. [Rule 38, Sec. 5]

B.10 GRANT OF FINAL INJUNCTION

If after the trial of the action it appears that the applicant is entitled to have the act or acts complained of permanently enjoined, the court shall grant a final injunction perpetually restraining the party or person enjoined from the commission or continuance of the act or acts or confirming the preliminary mandatory injunction. (Rule 58, Sec. 9)

C. RECEIVERSHIP

Receiver – A person appointed by the court in behalf of all the parties to the action for the purpose of preserving and conserving the property in litigation and prevent its possible destruction or dissipation if it were left in the possession of any of the parties.

Purpose

The purpose of a receivership as a provisional remedy is to protect and preserve the rights of the parties during the pendency of the

main action, during the pendency of an appeal or as an aid in the execution of a judgment when the writ of execution has been returned unsatisfied.

The receivership under Rule 59 is directed to the property which is the subject of the action and does not refer to the receivership authorized under banking laws and other rules or laws. Rule 59 presupposes that there is an action and that the property subject of the action requires its preservation.

Receivership under Rule 59 is ancillary to the main action. [Riano]

The guiding principle is the prevention of imminent danger to the property. If an action by its nature, does not require such protection or preservation, said remedy cannot be applied for and granted.

(Commodities Storage v. CA, 1997)

C.1 CASES WHEN RECEIVER MAY BE APPOINTED

[Rule 59, Sec. 1]

(1) When it appears from the verified application and other proof that the applicant has an interest in the property or fund which is the subject of the action or proceeding, and that such property or fund is in danger of being lost, removed, or materially injured unless a receiver be appointed to administer and preserve it;

(2) When it appears in an action by the mortgagee for the foreclosure of a mortgage that the property is in danger of being wasted or dissipated or materially injured, and that its value is probably insufficient to discharge the mortgage debt, or that the parties have so stipulated in the contract of mortgage;

(3) After judgment, to preserve the property during the pendency of an appeal, or to dispose of it according to the judgment, or to aid execution when the execution

160 has been returned unsatisfied or the judgment obligor refuses to apply his property in satisfaction of the judgment, or otherwise to carry the judgment into effect;

(4) Whenever in other cases it appears that the appointment of a receiver is the most convenient and feasible means of preserving, administering, or disposing of the property in litigation.

Specific Cases

(1) If a spouse without just cause abandons the other or fails to comply with his/her obligations to the family, the aggrieved spouse may petition the court for receivership. [Family Code, Article 101]

(2) The court may appoint a receiver of the property of the judgment obligor; and it may also forbid a transfer or other disposition of, or any interference with, the property of the judgment obligor not exempt from execution. [Rule 39, Sec. 41]

(3) After the perfection of an appeal, the trial court retains jurisdiction to appoint a receiver of the property under litigation since this matter does not touch upon the subject of the appeal. [Rule 41, Sec. 9;

Acuña v. Caluag (1957)]

(4) After final judgment, a receiver may be appointed as an aid to the execution of judgment. [Philippine Trust Company v.

Santamaria (1929)]

(5) Appointment of a receiver over the property in custodia legis may be allowed when it is justified by special circumstances, as when it is reasonably necessary to secure and protect the rights of the real owner. [Dolar v.

Sundiam (1971)]

C.2 REQUISITES; REQUIREMENTS BEFORE ISSUANCE

Procedure

(1) Verified application filed by the party requesting for the appointment of the receiver;

(2) Applicant must have an interest in the property or funds subject of the action;

(3) Applicant must show that the property or funds is in danger of being lost, wasted, or dissipated;

(4) Application must be with notice and must be set for hearing;

(5) Before appointing a receiver, the court shall require applicant to post a bond in favor of the adverse party.

(6) Before entering upon his duties, the receiver must be sworn to perform his duties faithfully and shall file a bond.

Who Appoints Receiver

(1) Court where the action is pending (2) CA

(3) SC

(4) During the pendency of an appeal, the appellate court may allow an application for the appointment of a receiver to be filed in and decided by the court of origin.

[Rule 59, Sec. 1]

Receivership may be denied or lifted (1) If the appointment was sought or

granted without sufficient cause (Sec. 3) (2) Adverse party files a sufficient bond to

answer for damages (Sec. 3)

(3) Bond posted by applicant for grant of receivership is insufficient (Sec. 5)

(4) Bond of the receiver is insufficient (Sec.

5)

C.3 THE RECEIVER

Who May Be Appointed

The general rule is that neither party to the litigation should be appointed as a receiver without the consent of the other because a receiver is supposed to be an impartial and disinterested person. (Alcantara v. Abbas, 1963)

161 A clerk of court should not be appointed as a receiver as he is already burdened with his official duties. (Arigo v. Kayanan, 1983) Powers of a Receiver

(1) Bring and defend in such capacity actions in his own name with leave of court (2) Take and keep possession of the property

in controversy (3) Receive rents

(4) Collect debts due to himself as receiver or to the fund, property, estate, person, or corporation of which he is the receiver (5) Compound for and compromise the same (6) Make transfers

(7) Pay outstanding debts

(8) Divide the money and other property that shall remain among the persons legally entitled to receive the same’

(9) Generally, to do such acts respecting the property as the court may authorize (10) Invest funds in his hands, only by order of

the court upon the written consent of all the parties. [Rule 59, Sec. 6]

Liability for refusal or neglect to deliver property to receiver

(1) May be punished for contempt; and (2) Shall be liable to the receiver for the

money or the value of the property and other things so refused or neglected to be surrendered together with all damages that may have been sustained by the party or parties entitled thereto as a consequence of such refusal or neglect.

[Rule 59, Sec. 7]

Remedies Against the Receiver

(1) No action against receiver can be maintained without leave of court

(2) An aggrieved party may:

(a) Take the matter into the court which appointed the receiver and ask either for an accounting or take some other proceeding, and ask for consequent judgment on the acts complained of; or (b) Ask for leave of court to bring him an

o Undertaking: applicant will pay such party all damages he may sustain by reason of the appointment, in case the applicant shall have procured such without sufficient cause

The court may require additional bond after appointment in the exercise of its discretion as further security for such damages (Rule 59, Sec. 2)

Receiver’s Bond

As a precondition before entering into his duties, receiver must file a bond.

o Executed to the person against whom the application is presented be caused before the receiver qualifies or takes possession of the property

Liability rests on the mismanagement or negligence of receiver

The applicant’s bond

is responsible The receiver’s bond is responsible

162 necessity for a receiver no longer exists

o Motu proprio, or on motion of either

o Motu proprio, or on motion of either

In document Facultad de Ciencias del Trabajo. Grado en Relaciones Laborales y Recursos Humanos. (página 52-55)