2. Azajar vs. CA Nov.
10, 1986 hearing, together with a copy of the motion, and of any affidavits
FACTS:
1. Azajar purchased thru the agent of Cham Samco 100 kegs of nails of
various sizes and paid P18,000 in full. However, Cham Samco only
delivered a part of the quantity ordered. Azajar filed a complaint
before the CFI of Cam Sur.
2. Instead of submitting an answer, Samco filed a motion to dismiss on
two grounds: failure of the complaint to state a cause of action and
that venue was improperly laid.
3. The motion to dismiss contained a notice addressed to the Clerk of
Court.
4. Contending that such notice was fatally defective, Azajar filed a
motion to declare Samco in default, which the court granted. Azajar
was allowed to present evidence ex parte and the court rendered
judgment against Samco.
5. The TC justified its order of default in this wise: that instead of filling
an answer to the complaint, Samco filed a motion to dismiss which is
not a motion at all because the “notice” is directed to the Clerk of
Court instead of the party concerned (as required by Sec.5, Rule 15,
RC) and is without the requisite notice of hearing directed to the CC
and not to the parties, and merely stating that the same be submitted
for resolution. It is without the requisite notice of time and place of
hearing.
6. Aggrieved, Samco went to CA for recourse, but the CA affirmed the
decision of the TC. However, on motion for reconsideration, CA
reversed itself and declared that technicalities should be brushed
aside so that Samco can be given a day in court.
ISSUE: WON the failure of Cham Samco to set its motion to dismiss for
hearing on a specified date and time and for not addressing the same to the
party interested is fatal to his cause.
HELD: Yes. Although the Court sided with CA that technicalities should be set
aside to Samco to be afforded with his day in court.
1. The law explicitly requires that notice of motion shall be served by
the appellant to all parties concerned at least 3 days before the
and other papers accompanying it; and that notices shall be directed
to the parties concerned stating the time and place for the hearing of
the motion. Failure to comply with the requirement is a fatal flaw.
2. Such notice is required to avoid surprises upon the opposite party and
give the latter time to study and meet the arguments of the motion as
well as to determine or make determinable the time of submission of
the motion for resolution.
3. Without the notice, the occasion would not arise to determine with
reasonable certitude whether and within what time the adverse party
would respond to the motion, and when the motion might already be
resolved by the Court.
4. The duty to give that notice is imposed on the movant and not on the
court.
3. G.R. No. 163785 December 27, 2007
KKK FOUNDATIONVS. HON. ADELINA CALDERON-BARGAS
FACTS:On March 1, 2002, petitioner, filed a complaint for Annulment of
Extra-judicial Foreclosure of Real Estate Mortgage and/or Nullification of
Sheriff’s Auction Sale and Damages with Prayer for the Issuance of TRO
and/or Writ of Preliminary Injunction.3 Petitioner alleged that: (1) the auction
sale was made with fraud and/or bad faith since there was no public
bidding; (2) the sheriff did not post the requisite Notice of Sheriff’s Sale; (3)
the petition for extrajudicial foreclosure was fatally defective since it sought
to foreclose properties of two different entities; (4) the foreclosed properties
were awarded and sold to Imelda A. Angeles for an inadequate bid of only
P4,181,450; and (5) the auction sale involved eight parcels of land covered
by individual titles but the same were sold en masse. On March 7, 2002,
Judge Calderon-Bargas issued TRO preventing Angeles from consolidating
her ownership to the foreclosed properties. On even date, petitioner and
Angeles executed a Compromise Agreement wherein petitioner agreed to
pay Angeles the bid price of the eight parcels of land within 20 days. The
parties then filed a Motion to Approve Compromise Agreement.On April 1,
2002, petitioner filed an Urgent Ex-Parte Motion to Recall Compromise
Agreement since the other property owner and other trustees of petitioner
were not consulted prior to the signing of the agreement. Angeles opposed
the motion.Judge Calderon-Bargas issued an Order stating that Record shows
that the Urgent Ex-Parte Motion to Recall Compromise Agreement and Motion
to Approve Compromise Agreement both failed to comply with Sec[s]. 4 and
5, Rule 15 of the Civil Procedure. Both proceedings have no specific date of
hearing. The reason why the Motion to Approve Compromise Agreement up to
now has not yet been acted upon was that it has no date of hearing.Thus,
these are considered mere scrap[s] of paper. The TC approved the
Compromise Agreement. Angeles then moved for the issuance of a writ of
execution. The TC required petitioner to comment on the motion within ten (10)
days.TC directed the Clerk of Court to issue a writ of execution. On the same
date, the trial court received petitioner’s Motion for Extension of Time to File
Comment with Entry of Appearance which was denied on October 10, 2002.
Petitioner then moved for reconsideration of the October 3, 2002
Order.Petitioner came to the Court of Appeals via petition for certiorari. The
CA denied the petition and ruled that petitioner was not deprived of due
process when the trial court issued the October 3, 2002 and the October 10,
2002 Orders since it was given sufficient time to file its comment. The
appellate court did not rule on the second and third issues after noting that
petitioner’s motion for reconsideration of the October 3, 2002 Order had not
yet been resolved by the trial court. It did not resolve the issues even after the
trial court denied petitioner’s motion for reconsideration on December 12,
2003,11 ratiocinating that the trial court’s denial of petitioner’s motion for
reconsideration did not operate to reinstate the petition because at the time it
was filed, petitioner had no cause of action.Hence , this petition.
ISSUES: WON the trial court seriously erred: (1) in issuing the October 3,
2002 and the October 10, 2002 Orders without awaiting petitioner’s
comment; (2) in granting the Motion for Issuance of Writ of Execution although
it lacked the requisite notice of hearing; and (3) in issuing the writ of
execution since it varied the tenor of the decision dated June 28, 2002.
HELD:
On the first issue, we note that in its September 9, 2002 Order, the trial court
gave petitioner ten (10) days to file its comment to Angeles’s Motion for
Issuance of Writ of Execution. While petitioner claims that it received the
Order only on September 21, 2002, Angeles counters that petitioner received
it on September 12, 2002. We are more inclined to believe Angeles’s
allegation since the trial court itself declared in its Order dated October 10,
2002 that the Order dated September 9, 2002 was personally served upon
petitioner on September 12, 2002.13 Thus, petitioner had until September
22, 2002 within which to file its comment or to request for an extension of
time. Consequently, petitioner’s motion for extension and comment were not
seasonably filed and such procedural lapse binds petitioner.
Anent the second issue, a motion which does not meet the requirements of
Sections 4 and 5 of Rule 1514 of the Rules of Court is considered a worthless
piece of paper, which the Clerk of Court has no right to receive and the trial
court has no authority to act upon. Service of a copy of a motion containing a
notice of the time and the place of hearing of that motion is a mandatory
requirement, and the failure of movants to comply with these requirements
renders their motions fatally defective. However, there are exceptions to the
strict application of this rule. These exceptions are: (1) where a rigid
application will result in a manifest failure or miscarriage of justice especially
if a party successfully shows that the alleged defect in the questioned final
and executory judgment is not apparent on its face or from the recitals
contained therein; (2) where the interest of substantial justice will be served;
(3) where the resolution of the motion is addressed solely to the sound and
judicious discretion of the court; and (4) where the injustice to the adverse
party is not commensurate with the degree of his thoughtlessness in not
complying with the procedure prescribed.A notice of hearing is an integral
component of procedural due process to afford the adverse parties a chance
to be heard before a motion is resolved by the court. Through such notice, the
adverse party is given time to study and answer the arguments in the motion.
Records show that while Angeles’s Motion for Issuance of Writ of Execution
contained a notice of hearing, it did not particularly state the date and time
of the hearing. However, scstill find that petitioner was not denied
procedural due process. Upon receiving the Motion for Issuance of Writ of
Execution, the trial court issued an Order dated September 9, 2002 giving
petitioner ten (10) days to file its comment. The trial court ruled on the motion
only after the reglementary period to file comment lapsed. Clearly, petitioner
was given time to study and comment on the motion for which reason, the very
purpose of a notice of hearing had been achieved.Procedural due process is
not based solely on a mechanical and literal application that renders any
deviation inexorably fatal. Instead, procedural rules are liberally construed
to promote their objective and to assist in obtaining a just, speedy and
inexpensive determination of any action and proceeding.
On the last issue, SC note that the Compromise Agreement approved by the
trial court in its Decision dated June 28, 2002 merely provided that petitioner
would pay Angeles the bid price of P5,500,000, for the eight parcels of land
subject of the auction sale, within twenty (20) days. Upon payment, Angeles
would execute a Certificate of Deed of Redemption and a Deed of
Cancellation of Mortgage, and surrender to petitioner the titles to the eight
parcels of land. Nevertheless, when the trial court issued the writ of execution,
the writ gave Sheriff Bisnar the option "to allow the consolidation of the
subject real properties in favor of the defendant Imelda Angeles."
Undoubtedly, the writ of execution imposed upon petitioner an alternative
obligation which was not included or contemplated in the Compromise
Agreement. While the complaint originally sought to restrain Angeles from
consolidating her ownership to the foreclosed properties, that has been
superseded by the Compromise Agreement. Therefore, the writ of execution
which directed Sheriff Bisnar to "cause the Register of Deeds of Morong,
Rizal, to allow the consolidation of the subject real properties in favor of the
defendant Imelda Angeles" is clearly erroneous because the judgment under
execution failed to provide for consolidation. Because the writ of execution
varied the terms of the judgment and exceeded them, it had no validity. The
writ of execution must conform to the judgment which is to be executed, as it
may not vary the terms of the judgment it seeks to enforce. Neither may it go
beyond the terms of the judgment sought to be executed. Where the
execution is not in harmony with the judgment which gives it life and exceeds
it, it has pro tanto no validity.20
WHEREFORE, the instant petition is PARTIALLY GRANTED. The Decision dated
November 28, 2003 and the Resolution dated May 26, 2004 of the Court of
Appeals in CA-G.R. SP No. 73965 are MODIFIED such that the writ of
execution issued on October 11, 2002 by Judge Adelina Calderon-Bargas is
declared NULL and VOID.
SC ordered that the case be REMANDED to the Regional Trial Court of
Morong, Rizal, Branch 78, which is hereby ORDERED to issue another writ of
execution against petitioner KKK Foundation, Inc., in conformity with the
Decision dated June 28, 2002 of the trial court. This is without prejudice to
filing a new motion for consolidation by respondent Angeles.
Rule 12 – Motions for Bill of Particulars
1. SANTOS V. LIWAG (G.R. No. L-24238 November 28, 1980)
DOCTRINE: The allowance of a motion for a more definite statement or bill
of particulars rests within the sound judicial discretion of the court and, as
usual in matters of a discretionary nature, the ruling of the trial court in that
regard will not be reversed unless there has been a palpable abuse of
discretion or a clearly erroneous order. EMERGENCY RECIT (Very short case –
please refer to the facts below)
FACTS: • June 8, 1964: Jose Santos filed a complaint against Lorenzo Liwag
with the CFI of Manila, which seeks to annul certain documents which were
alleged to be done with malice, threats, false pretenses, machination,
misrepresentations, and other fraudulent means, with damages and costs.
• July 4, 1964: Santos filed a motion asking the court to order Liwag
(petitioner) to submit bill of particulars on certain allegations of the complaint
believed to be vague and conflicting, and that he be informed of the charges
filed against him to prepare an intelligent and proper pleading necessary
and appropriate in the premises
• Liwag opposed the said motion and said that the allegations in the
complaint filed are sufficient and contains the facts needed for a cause of
action to exist and Santos’ motion is indeed evidentiary in nature Trial Court
• Granted the motion and directed the plaintiff to submit a bill of particulars
with respect to the paragraphs specified in defendant’s motion
• When plaintiff failed to comply with the order of the court, the complaint
was dismissed with costs against the plaintiff
ISSUE: 1. WON the trial court erred in granting the motion for bill of
particulars filed by Liwag.
HELD/RATIO: 1. NO. • BILL OF PARTICULARS ARE DISCRETIONARY UPON
THE COURTS o The allowance of a motion for a more definite statement or
bill of particulars rests within the sound judicial discretion of the court and, as
usual in matters of a discretionary nature, the ruling of the trial court in that
regard will not be reversed unless there has been a palpable abuse of
discretion or a clearly erroneous order. o Complaint was indeed drawn and
suffers from vagueness and generalization to enable the defendant properly
to prepare a responsive pleading and to clarify issues and aid the court in an
orderly and expeditious disposition in the case.
• RULES ON BILL OF PARTICULARS ON THE GROUND OF VAGUE
COMPLAINT o If an action (like this case) is one for the annulment of
documents that have been allegedly executed by reason of deceit,
machination, false pretenses, misrepresentation, threats, and other fraudulent
means. o Deceit, machination, false pretenses, misrepresentation, and threats,
however, are largely conclusions of law and mere allegations thereof without
a statement of the facts to which such terms have reference are not sufficient.
The allegations must state the facts and circumstances from which the fraud,
deceit, machination, false pretenses, misrepresentation, and threats may be
inferred as conclusions. § In his complaint, the appellant merely averred that
all the documents sought to be annulled were all executed through the use of
deceits, machination, false pretenses, misrepresentations, threats, and other
fraudulent means without the particular-facts on which alleged fraud, deceit,
machination, or misrepresentations are predicated.
• FAILURE TO COMPLY WITH A COURT ORDER TO FILE OF A BILL OF
PARTICULARS RESULTS IN DISMISSAL OF COMPLAINT o Hence, it was
proper for the trial court to grant the defendant's motion for a bill of
particulars, and when the plaintiff failed to comply with the order, the trial
court correctly dismissed the complaint.
2. FAUSTA AGCANAS, JUAN MIGUEL, JUANITA MIGUEL, assisted by her
husband ULPIANO PASION,
assisted by her husband JUAN PASCUAL vs. BRUNO MERCADO and
ANTONIO DASALLA
Facts:
1. On November 25, 1956 plaintiffs filed this action to recover portions
of a parcel of land in Isabela, and damages. Under date of
December 4, 1956 defendants filed a motion for a bill of particulars,
with notice of hearing on December 8, but since the motion was
actually received in court only on December 12 the court set it for
hearing on December 22.
2. On December 17, however, defendants filed a motion to dismiss the
complaint, with a prayer that consideration of their motion for a bill
of particulars be held in abeyance pending resolution of their motion
to dismiss. On December 22, 1956, the date set by the court for the
hearing of the motion for a bill of particulars and by defendants for
the hearing of their motion to dismiss, the court issued an order
postponing "consideration" of both motions to December 29.
3. On March 7, 1957 the court denied the motion to dismiss and
ordered defendants "to answer the complaint within the reglementary
period provided for by the Rules of Court." Hearing of the case on
the merits was set for October 29, 1957, notice of which was duly
received by defendants. Defendants not having filed their answer,
plaintiffs, on October 17, 1957, moved to have them declared in
default. On the same day the court issued the order of default
together with another order commissioning the clerk of court to
receive plaintiff's evidence.
4. On October 21, 1957 defendants moved to cancel the hearing
scheduled for October 29, on two grounds one of which was that their
motion for a bill of particulars had not yet been resolved. The motion
to cancel was set for hearing on October 26, 1957. When
defendants arrived in court on that day they learned that an order of
default had been issued, so they immediately filed a motion asking
that the same be set aside that their pending motion for a bill of
particulars be resolved and that they be given a reasonable period
thereafter within which to file their answer to the complaint.
5. On December 13, 1957 the court denied the motion and rendered
its decision in favor of plaintiffs and against defendants.
6. On January 4, 1958 it denied defendants' motion for
reconsideration of the order of denial. On January 24, defendants
filed their record on appeal (to this Court from the order of
December 13, 1957), but as they subsequently filed a petition for
relief from the judgment by default, they asked that consideration
and approval of their record on appeal be held in abeyance until
said petition had been resolved. The request was granted.
Defendant's petition for relief, which was filed on January 28, 1958,
was denied on March 21, as was also, on September 20, 1958 their
motion for reconsideration of the order of denial.
7. On October 4, 1958 the court denied likewise their motion for a writ
of preliminary injunction to restrain execution of the judgment by
default. Hence, this appeal.
Issue: Whether or not upon denial of a defendants' motion to dismiss the
reglementary period within which to file an answer resumes running even
though the motion for a bill of particulars of the same defendants is still
pending and unresolved.
Held:
Both a motion to dismiss and a motion for a bill of particulars interrupt the
time to file a responsive pleading. In the case of a motion to dismiss, the
period starts running against as soon as the movant receives a copy of the
order of denial. In the case of a motion for a bill of particulars, the
suspended period shall continue to run upon service on the movant of the bill
of particulars, if the motion is granted, or of the notice of its denial, but in any
event he shall have not less than five days within which to file his responsive
pleading.
When appellants filed a motion to dismiss they requested that resolution of
their previous motion for a bill of particulars be held in abeyance. This was
but practical because if the court had granted the motion to dismiss, there
would have been no need for a bill of particulars. Resolution of the motion for
the purpose was necessary only in the event that court should deny, as it did,
the motion to dismiss, in which case the period to file an answer remained
suspended until the motion for a bill of particulars is denied or, if it is granted,
until the bill is served on the moving party.
Wherefore, the parties respectfully pray that the foregoing stipulation of
facts be admitted and approved by this Honorable Court, without prejudice
to the parties adducing other evidence to prove their case not covered by this
stipulation of facts.
No action having been taken thereon until the present, the period to
answer has not yet expired. The lower court, therefore, erred in declaring
appellants in defaults and in taking all the subsequent actions it did in the
case.
The order of default issued and the decision rendered by the trial court are
set aside and the case is remanded for further proceedings, pursuant to the
Rules.
3. Salita vs Magtolis
Facts:
1. Erwin Espinosa, 32, and Joselita Salita, 22, were married at the Roman
Catholic Church in Ermita, Manila.
2. They separated in fact in 1988. Subsequently, Erwin sued for annulment on
the ground of Joselita’s psychological incapacity.
3. The petition for annulment was filed before the Regional Trial Court of
Quezon City. Therein it is alleged that petitioner came to realize that
respondent was psychologically incapacitated to comply with the
essential marital obligations of their marriage, which incapacity existed at
the time of the marriage although the same became manifest only
thereafter."Edwin specified that at the time of their marriage, respondent
(Joselita Salita) was psychologically incapacitated to comply with the
essential marital obligations of their marriage in that she was unable to
understand and accept the demands made by his profession — that of a
newly qualified Doctor of Medicine — upon petitioner’s time and efforts
so that she frequently complained of his lack of attention to her even to
her mother, whose intervention caused petitioner to lose his job.
4. Dissatisfied with the allegation in the petition, Joselita moved for a bill
of particulars. She argued that the "assertion (in the Bill of Particulars) is a
statement of legal conclusion made by petitioner’s counsel and not an
averment of ‘ultimate facts,’ as required by the Rules of Court, from which
such a conclusion may properly be inferred . . . ." 4 But finding the
questioned Bill of Particulars adequate, the trial court issued an order
upholding its sufficiency and directing Joselita to file her responsive
pleading.
5. She filed a petition for certiorari before the Supreme Court but the SC
referred it to the CA. The CA denied her petition.
Issue: WON the Bill of Particulars submitted by herein respondent is of
sufficient definiteness or particularity as to enable herein petitioner to
properly prepare her responsive pleading or for trial.
Held: Yes. A complaint only needs to state the "ultimate facts constituting
the plaintiff’s cause or causes of action." 9 Ultimate facts has been defined
as "those facts which the expected evidence will support." 10 As stated by
private respondent, "[t]he term does not refer to the details of probative
matter or particulars of evidence by which these material elements are to be
established." It refers to "the facts which the evidence on the trial will prove,
and not the evidence which will be required to prove the existence of those
facts." And a motion for bill of particulars will not be granted if the
complaint, while not very definite, nonetheless already states a sufficient
cause of action. 11 A motion for bill of particulars may not call for matters
which should form part of the proof of the complaint upon trial. Such
information may be obtained by other means. 12
We sustain the view of respondent Court of Appeals that the Bill of
Particulars filed by private respondent is sufficient to state a cause of action,
and to require more details from private respondent would be to ask for
information on evidentiary matters. Indeed, petitioner has already been
adequately apprised of private respondent’s cause of action against her thus
—
. . . . (she) was psychologically incapacitated to comply with the essential
marital obligations of their marriage in that she was unable to understand
and accept the demands made by his profession — that of a newly qualified
Doctor of Medicine — upon petitioner’s time and efforts so that she
frequently complained of his lack of attention to her even to her mother,
whose intervention caused petitioner to lose his job.
On the basis of the aforequoted allegations, it is evident that petitioner
can already prepare her responsive pleading or for trial. Private
respondent has already alleged that "she (petitioner) was unable to
understand and accept the demands made by his profession . . . upon his
time and efforts . . . " Certainly, she can respond to this. To demand for
more details would indeed be asking for information on evidentiary facts
— facts necessary to prove essential or ultimate facts. 13 For sure, the
additional facts called for by petitioner regarding her particular acts or
omissions would be evidentiary, and to obtain evidentiary matters is not
the function of a motion for bill of particulars. 14
 RULE 16 – Motion to Dismiss
1. RAMOS vs PERALTA
2. Lee Bun Ting and Ang Chia vs. Hon. Jose Aliagen, Rafael
Dinglasan et. al.
Facts: In a previous cases [G. R. No. L-5996, "Rafael Dinglasan, et al. vs. Lee
Bun Ting, et al.] decided by the SC with the same set of private parties, it was
found that private respondents sold to herein petitioner a parcel of land
located in Roxas City, Capiz through a conditional sale. Lee, the buyer, on the
other hand avers that it was an absolute sale. Both trial court and CA ruled in
favor of buyer Lee. The SC found that Lee is normally not allowed to
purchase the property on the count of the constitutional prohibition (Section 5.
Save in cases of hereditary succession, no private agricultural land shall be
transferred or assigned except to individuals, corporations, or associations
qualified to acquire or hold lands of the public domain in the Philippines.-
Article 13, 1935 Consitution) But since it was also found out that the buyers
(private respondents) are in pari delicto for selling the property in spite of the
constitutional prohibition they are proscribed from assailing the sale made
between them and herein private respondents.
12 years after the above mentioned case was promulgated, the present case
for the recovery of the lot was instituted with the same contention of the
respondents Dinglasan that the sale should be null and void on account of the
constitutional prohibition.
A motion to dismiss was filed by petitioners in this case on the ground of res
judicata. An opposition thereto was filed by plaintiffs, with the averment that
the decision in the prior case "cannot be pleaded in bar of the instant action
because of new or additional facts or grounds of recovery and because of
change of law or jurisprudence.
The Court of Appeals denied the motion to dismiss.
Issue: Whether or not the motion to dismiss should be granted
Held: Affirmative. The decision of this Court in G. R. No. L-5996, "Rafael
Dinglasan, et al. vs. Lee Bun Ting, et al." constitutes a bar to Civil Case No. V-
3064 before the respondent court. Said Civil case, therefore, should have
been dismissed because it is a mere relitigation of the same issues previously
adjudged with finality, way back in 1956, between the same parties or their
privies and concerning the same subject matter. We have consistently held
that the doctrine of res judicata applies where, between a pending action and
one which has been finally and definitely settled, there is Identity of parties,
subject matter and cause of action.
We find that in the ultimate analysis, Civil Case No. V-3064 is but an attempt
to reopen the issues which were resolved in the previous case. Contrary to the
contentions of private respondents, there has been no change in the facts or in
the conditions of the parties. Posterior changes in the doctrine of this Court
cannot retroactively be applied to nullify a prior final ruling in the same
proceeding where the prior adjudication was had, whether the case should be
civil or criminal in nature. The determination of the questions of fact and of
law by this Court on June 27, 1956 in case No. L-5996 has become the law
of the case, and may not now be disputed or relitigated by a reopening of
the same questions in a subsequent litigation between the same parties and
their privies the same subject matter.
3. PHILIPPINE NATIONAL BANK, plaintiff-appellant,
vs. HERMOGENES HIPOLITO and LEONOR
JUNSAY, defendants-appellees.
G.R. No. L-16463
FACTS: June 18, 1959 – a complaint was filed alleging that defendant
Hermogenes Hipolito and Leonor Junsay obtained various sugar crop loans
from plaintiff PNB through its Victorias Branch, evidenced by promissory
notes.
The amount of the notes was a total of P9,692.00. Defendants only paid
P3,905.61, leaving a balance of P6,786.39, which, added to accrued interest
of P5,213.34, summed up to P11,999.73 as of January 17, 1957.
Despite repeated demands, defendants failed and refused to pay said
amount. May 7, 1957 - defendants went to Atty. Francis I. Medel of the legal
department of plaintiff's Victorias branch and offered a plan of payment of
the account
For reasons unknown to plaintiff and probably due to the transfer of
defendant Hipolito as supervising teacher to some other province, his
proposed plan of payment did not materialize. Said offer of plan of
payment was an acknowledgment of defendants' just and valid obligation.
The prayer is for the court to order defendants to pay to plaintiff the said
amount of P11,999.73, with accrued annual interest thereon ( rate of 5%
from January 17, 1957 up to the date of payment, plus attorney's fees
equivalent to 10%.)
Defendants moved for a bill of particulars – denied. Defendants moved to
dismiss on the ground that plaintiff's cause of action already prescribed.
attached to the motion: a joint affidavit and defendants averred that they
never made any acknowledgment of indebtedness nor offered a plan of
payment, but on the contrary had always maintained that plaintiff's action
had prescribed.
Plaintiff’s opposition - contending that the prescriptive period had been
suspended by "EO No. 32, known as the Moratorium Law," and interrupted,
pursuant to Article 1973 of the old Civil Code, by plaintiff’s written extra-
judicial demands as well as by defendants’ acknowledgment of the
indebtedness.
Defendants reply to plaintiff's opposition - citing Bachrach Motors Co., Inc.
v. Chua Tia Hian, stated that EO. No. 32, if at all, suspended the prescriptive
period "only for 2yrs, 4 months and 16 days, from March 10, 1945, or only
up to July 26, 1948," - that the alleged written extrajudicial demands
constitute self-serving evidence; and that defendant Hipolito’s letter of
February 16, 1959 cannot be considered as an acknowledgment of
indebtedness.
Lower court – dismissed the complaint: ruled that the 7 promissory notes
constituted 1 single obligation, that the last promissory note dated June 23,
1941, should be considered as the true date of the written contract, from
which the 10-year prescriptive period and such period has been suspended
for 2 years, 4 months and sixteen 16 days (by reason of EO No. 32) until
said Order was declared unconstitutional.
ISSUE: Whether or not the defendant’s denial of the allegations constitute as
grounds for the dismissal of the complaint
RULING: NO. The dismissal is erroneous. In a motion to dismiss defendant
hypothetically admits the truth of the allegations of fact contained in the
complaint.
An examination of the complaint herein does not indicate clearly that
prescription has set in. On the contrary, it is belied by the allegation
concerning defendant’s offer of payment made on May 7, 1957. Such offer
hypothetically admitted in the motion, worked as a renewal of the obligation.
An offer of payment works as a renewal of the obligation and prevents
prescription from setting in.
It is true that defendants attached to the motion a joint affidavit of merit
wherein they deny having made an offer of a plan of payment. The denial,
being a contrary averment of fact, would be proper in the answer to the
complaint but not in a motion for dismissal, for the contradictory allegations
would require presentation of evidence. Denial of allegations in a complaint is
not proper in a motion to dismiss.
** A denial of an allegation of a complaint, as for example the denial of an
offer of payment which would prevent prescription from setting in, would be
proper in the answer to the complaint but not in a motion for dismissal, for the
contradictory allegations would require presentation of evidence
The same is true of the other allegations in the complaint concerning, the
demands for payment sent by plaintiff upon defendants and the partial
payments made by them, all or some of which may have a material bearing
on the question of prescription. In other words, the ground for dismissal not
being indubitable, the lower court should have deferred determination of
the issue until after trial of the case on the merits.
The order appealed from is set aside and the case is remanded to the lower
court for further proceedings.
4. #11.G.R. No. 109068 January 10, 1994
GAUDENCIO GUERRERO, petitioner,
vs.
REGIONAL TRIAL COURT OF ILOCOS NORTE, BR. XVI, JUDGE
LUIS B. BELLO, JR., PRESIDING, and PEDRO G.
HERNANDO, respondents.

FACTS:
1. Pedro G. Hernando apparently overlooked this alleged defect since
he did not file any motion to dismiss nor attack the complaint on this
ground in his answer.
2. @ PRE-TRIAL: Judge Luis B. Bello, Jr.: NOTED THAT: GUERRERO and
HERNANDO were related as brothers-in-law then JUDGE gave
petitioner five (5) days "to file his motion and amended complaint" to
allege that the parties were very close relatives, their respective
wives being sisters, and that the complaint to be maintained should
allege that earnest efforts towards a compromise were exerted but
failed and considered this deficiency a JURISDICTIONAL DEFECT.
3. MR was filed by GUERRERO: brothers by affinity are not members
of the same family, he was not required to exert efforts towards a
compromise – DENIED: "[f]ailure to allege that earnest efforts
towards a compromise is jurisdictional such that for failure to allege
same the court would be deprived of its jurisdiction to take
cognizance of the case."
4. Case was dismissed without prejudice: No amended complaint filed
5. ISSUE: ON APPEAL: GUERRERO:
a. whether brothers by affinity are considered members of the
same family contemplated in Art. 217, par. (4), and Art. 222
of the New Civil Code, as well as under Sec. 1, par. (j), Rule
16, of the Rules of Court requiring earnest efforts towards a
compromise before a suit between them may be instituted
and maintained;
b. whether the absence of an allegation in the complaint that
earnest efforts towards a compromise were exerted, which
efforts failed, is a ground for dismissal for lack of jurisdiction.
HELD:
1. The Constitution protects the sanctity of the family and endeavors to
strengthen it as a basic autonomous social institution. This is also
embodied in Art. 149, and given flesh in Art. 151, of the Family
Code, which provides:
2. Considering that Art. 151 starts with the negative word "No", the
requirement is mandatory 4 that the complaint or petition, which must
be verified, should allege that earnest efforts towards a compromise
have been made but that the same failed, so that "[i]f it is shown that
no such efforts were in fact made, the case must be dismissed."
3. BUT the instant case presents no occasion for the application of
the above-quoted provisions. As early as two decades ago, we
already ruled in Gayon v. Gayon 6 that the enumeration of "brothers
and sisters" as members of the same family does not comprehend
"sisters-in-law".
4. The requirement that the complaint or petition should allege that
earnest efforts toward a compromise have been made but that the
same failed is mandatory
5. The enumeration of “brothers and sisters” as members of the same
family does not comprehend “sister-in-law”/ “brothers-in-law” are not
listed in Art 217 of the NCC as members of the same family and
since Art 150 repeats the same “members of the family” court finds
no reason to alter the existing jurisprudence
6. 2nd ISSUE: The attempt to compromise as well as the inability to
succeed is a condition precedent to the filing of a suit between
members of the same family, absent such allegation in the complaint
being assailable at any stage of the proceeding, even on appeal, for
lack of cause of action.
5. CONTINENTAL CEMENT CORPORATION, petitioner,
vs.
COURT OF APPEALS and MUNICIPALITY OF
NORZAGARAY, respondents.
FACTS:
1. On February 1, 1985, the Municipality of Norzagaray filed a
complaint for recovery of taxes against the petitioner in the Regional
Trial Court of Malolos, Bulacan.
2. Before the expiration of the 15-day reglementary period to answer,
the petitioner filed two successive motions for extension of time to file
responsive pleadings, which were both granted. The last day of the
second extension was May 28, 1985.
3. On May 25, 1985, the petitioner filed a motion to dismiss the
complaint on the ground of the plaintiffs lack of capacity to sue and
lack of a cause of action. The motion was denied "both for lack of
merit and for having been improperly filed."
4. On July 25, 1985, the plaintiff moved to declare the petitioner in
default for having filed only the motion to dismiss and not a
responsive pleading during the extension granted. This declaration
was made on August 2, 1985, and evidence for the plaintiff was
thereafter received ex parte resulting in a judgment in its favor on
February 4, 1986. The judgment was affirmed by the respondent
court in its decision dated April 7, 1989, which is the subject of the
present petition.
ISSUE: WON the Motion to Dismiss was seasonably filed.
Ruling:
There is no question that the motion to dismiss was filed seasonably,
within the period of the second extension granted by the trial court. It
is true that such a motion could not be considered a responsive
pleading as SC have held in many cases. Nevertheless, it is also true
that in Section 1 of Rule 16 of the Rules of Court, it is provided that
"within the time for pleading,a motion to dismiss the action may be
made" on the grounds therein enumerated, including the grounds
invoked by the petitioner.
Moreover, it is clearly provided in Section 4 of the same Rule that:
Sec. 4. Time to plead. — If the motion to dismiss is denied or if
determination thereof is deferred, the movant shall file his answer
within the period prescribed by Rule 11, computed from the time he
received notice of denial or deferment, unless the court provides a
different period.
The motion to dismiss was filed on May 25, 1985, three days before
the expiration of the second extension. Notice of its denial was
served on the petitioner on July 29, 1985. From that date, the
petitioner had 15 days within which to file its answer, or until August
13, 1985. It was unable to do so, however, because of the default
order issued by the trial court on August 2, 1985. On that date, the
petitioner still had eleven days before the expiration of the 15-day
reglementary period during which the petitioner was supposed to file
his answer.
The Court recapitulates the rules as to the filing of a Motion to dismiss
by the defendant as follows:
1. The trial court may in its discretion and on proper motion extend
the 15-day reglementary period for the filing of responsive
pleadings.
2. During the original reglementary 15-day period, or any extension
of such period, the defendant may file a motion to dismiss the
complaint.
3. If the motion to dismiss is denied, the defendant is allowed another
fifteen days from notice of the denial to file the responsive pleading.
The full 15-day reglementary period starts all over again.
6. Borje vs. CFI of Misamis Occidental Br. II
Facts:
1. Borje is the counsel of the water consuming public of Ozamis City, he
allegedly received a blank water bill, with no indication of the meter
readings, no. of cubic meters consumed and the amount to be paid,
hence he refused to pay said bill which lead to the disconnection of
his services;
2. He brought an action for damages w/ preliminary injunction against
MOWD in the respondent Court;
3. The Court then issued an order enjoining MOWD to disconnect the
water service and subsequently to reconnect the service;
4. MOWD then filed a motion to dismiss based on 2 grounds: 1) lack of
jurisdiction of respondent Court and 2) another action pending
between the same parties for the same causes;
5. Respond Court dismissed the case but not based on the grounds
above mentioned but because there was no malice or bad faith in the
severance of the water connection of petitioner and that MOWD had
already reconnected the same.
Issue: WON, respondent court gravely abused its discretion in
dismissing the case based on the ground which is not alleged in the
motion to dismiss of MOWD
Held: YES.
1. The dismissal of an actions on grounds not alleged in the motion to
dismiss is improper for in so doing, a court in effect dismiss an action
motu propio w/out giving Borje a chance to argue ithe point w/out
receiving any arguments or evidence in question.
2. Under Sec. 1 of Rule 8, it enumerates the grounds upon which an
action may be dismissed and it specifically ordains that a motion to
this end be filed. The only instance in which the court may dismiss
upon a court’s own motion on action is, when the “plaintiff fails to
appear at the time of the trial or to prosecute his action for an
unreasonable length of time or to comply w/ the Rules or any order
of the Court.
3. The dismissal of an action upon a motion to dismiss constitutes a denial
of due process, if from a consideration of the pleading it appears
that there are issues of fact which cannot be decided w/out the trial
of the case on the merits.
xxx Summary or outright dismissals of actions are not proper where
there are factual matters in dispute which need presentation and
appreciation of evidence. … Short cuts in judicial processes are to be
avoided when they impede rather than promote a judicious
dispensation of justice xxx
7. DANFOSS, INC., Petitioners, vs. CONTINENTAL CEMENT
CORPORATION, Respondent.
G.R. No. 143788 September 9, 2005
FACTS:
1. Mechatronics Instruments and Controls, Inc. (MINCI) is an agent of
Danfoss, Inc.’s products here in the Philippines. On September 1997,
CCC ordered two unit 132 KW Danfoss Brand Frequency
Converter/Inverter from MINCI to be used in the Finish Mill of its
Cement Plant in Bulacan. In the terms of conditions of the original
purchase order, the two unit Frequency Converter shall be delivered
by Danfoss within 8 to 10 weeks from the opening of the letter of
credit. The letter of credit opened by CCC in favour of Danfoss on
September 9, 1997.
2. On September 17, 1997, MINCI informed CCC that its order are
already ready for shipment and MINCI requested to amend the letter
of credit changing the port of origin/loading from Singapore to
Denmark (Singapore is the Asian Regional Office of Danfoss, the
Head Office of the company is Denmark). CCC complied and the port
of origin in the letter of credit was changed.
3. On November 6, 1997, MINCI relayed to CCC that Danfoss Inc. was
still checking the status of their order. CCC replied that every delay
in the delivery of the order will cause loss to their company, so CCC
requested for early work out and immediate shipment to avoid
further loss.
4. But, on November 9, 1997, Danfoss Inc. informed MINCI through fax,
that the reason for the delivery problems was that some of the
supplied components for the new VLT 5000 series (this may be a part
of the converter which is the subject thing in this case or a machine to
create the converter) did not meet the agreed quality standard. So,
Danfoss was canvassing for another supplier for the said VLT 5000
series. In the fax, there was no clear message as to when normal
production will resume.
5. Upon receiving the relayed information, CCC surmised that Danfoss
would not be able to deliver their order. There was also no definite
commitment of the delivery from Danfoss and MINCI, so CCC
informed MINCI that they intend to cancel its order. The order was
cancelled on November 13, 1997.
6. Hence the complaint for damages filed by CCC with the RTC of
Quezon City against Danfoss and MINCI on November 5, 1998. In
reply, Danfoss filed a motion to dismiss the complaint.
CCC’s contention : Due to the “impending” delay in the delivery of its
order, it suffered more than P8 million and was compelled to look for
another supplier.
Danfoss’s contention: The case should be dismissed on the ground that
it did not state a cause of action.
1) The letter of credit was opened on September 9, 1997, so,
since the agreed delivery period is 8 to 10 weeks from the opening
of the letter of credit, the due date is until November 19, 1997.
2) Although Danfoss was having a problem with its supplier prior
to CCC’s cancellation of its order, CCC only surmised that Danfoss
could not deliver within the due date agreed upon.
3) Neither Danfoss nor CCC agreed to change the date of
delivery. Only the port of origin was changed in the letter of credit.
Danfoss has until November 19, 1997 to deliver the order, CCC
cancelled the order on November 13, 1997.
4) CCC never made an extrajudicial demand for the delivery of its
order on its due date as it cancelled the order before the due date.
 5) Damages sought for by CCC could not have accrued yet since
the order was cancelled before the delivery was actually delayed.
7. RTC ruled in favor of CCC. According to the RTC: “...the issue of
whether or not the defendants incur delay in the delivery of the
equipment in question within the period stipulated is a debatable
question which necessitates actual trial on the merits where the parties
have to adduce evidence in support of their respective stance.
8. CA: Affirmed the decision of the RTC and denied the Motion for
Reconsideration of Danfoss.
ISSUE: WON there was a cause of action in the complaint filed by
CCC against Danfoss
HELD: No, there was no cause of action in the complaint for damages
filed by CCC.
SC ruled that “In order to sustain a dismissal on the ground of lack of
cause of action, the insufficiency must appear on the face of the
complaint. And the test of the sufficiency of the facts alleged in the
complaint to constitute a cause of action is whether or not, admitting
the facts alleged, the court can render a valid judgment thereon in
accordance with the prayer of the complaint. For this purpose, the
motion to dismiss must hypothetically admit the truth of the facts
alleged in the complaint.”
After a careful perusal of the allegations in respondent’s complaint
for damages against petitioner, we rule that the same failed to state
a cause of action. When respondent sued petitioner for damages,
petitioner had not violated any right of respondent from which a
cause of action had arisen. Respondent only surmised that petitioner
would not be able to deliver the two units frequency
converter/inverter on the date agreed upon by them. Based on this
apprehension, it cancelled its order six days prior to the agreed date
of delivery. How could respondent hold petitioner liable for damages
(1) when petitioner had not yet breached its obligation to deliver the
goods and (2) after respondent made it impossible for petitioner to
deliver them by cancelling its order even before the agreed delivery
date?
The trial court erred in ruling that the issue of whether or not the
defendants incurred delay in the delivery of the equipment within the
period stipulated was a debatable question. It said that trial on the
merits was necessary and the parties had to adduce evidence in
support of their respective positions.8 But what was there to argue
about when, based on the allegations of the complaint, petitioner was
not yet due to deliver the two units frequency converter/inverter
when respondent cancelled its order? It still had six days within which
to comply with its obligation. The court a quo should not have denied
petitioner’s motion to dismiss the complaint (for its failure to state a
cause of action) when, on its face, it was clear that petitioner had not
yet reneged on its obligation to deliver the frequency
converter/inverter on the date mutually agreed upon by the parties.
Moreover, the obligation itself was negated by no less than
respondent’s own act of cancelling its order even before the
prestation became due and demandable. Where therefore was the
breach? Where was the damage caused by petitioner? There was
none.
Consequently, it was wrong for the CA to affirm the order of the trial
court denying petitioner’s motion to dismiss the complaint for its
failure to state a cause of action.
8. Lu vs. Nabua (eto lang talaga facts ng case, please read rule 16
sec 2 and 3)
Facts:
 The petition stemmed from an amended complaint filed by the "PR"
against "P", for accounting w/ TRO and Injunction;
 "P" filed an Omnibus MD the Amended Complaint based on the ff.
grounds:
o Plaintiff's claims are barred by a prior judgement or by
statute of limitations (R16 S1f)
o Plaintiffs have no legal capacity to sue and/or do not have a
cause of action(R16 S1g)
o Fraud and Equity
o Docket Fees are not paid
 "PR" filed their opposition of the Omnibus MD Amended Complaint
alleging the ff.:
 o Plaintiffs not barred by prior judgment nor by statute of
limitations
o Plaintiffs have the legal capacity to sue and have a valid
cause of action
o DF have been paid
 After the filing of "P" reply to the Opposition to MD Amended
Complaint, the same was submitted for resolution;
 In resolving the OMD, lower court denied the OMD thenafter "P" filed
an MR regarding the dismissal of the OMD however it was also
denied. Hence appeal.
Issues:
1. WoN the CA erred in dismissing the petition for certiorari in
holding that the trial court did not commit grave abuse of discretion in
denying "P" MD
2. WoN the trial court’s denial of petitioner’s motion to dismiss on the
ground that “[T]here are justiciable questions raised in the pleadings
of the herein parties which are proper subject of a full blown trial”
contravenes Sec. 3, Rule 16 of the Rules and constitutes grave abuse
of discretion on the part of the trial court.
Held:
1. An order denying a motion to dismiss is an interlocutory order
which neither terminates nor finally disposes of a case,as it leaves
something to be done by the court before the case is finally decided
on the merits. As such, the general rule is that the denial of a motion
to dismiss cannot be questioned in a special civil action for certiorari
which is a remedy designed to correct errors of jurisdiction and not
errors of judgment. Neither can a denial of a motion to dismiss be the
subject of an appeal unless and until a final judgment or order is
rendered. In order to justify the grant of the extraordinary remedy of
certiorari, the denial of the motion to dismiss must have been tainted
with grave abuse of discretion amounting to lack or excess of
jurisdiction.
2. Under R16 S3, provides that Under this provision, there are three
(3) courses of action which the trial court may take in resolving a
motion to dismiss, i.e., to grant, to deny, or to allow amendment of the
pleading. Deferment of the resolution of a motion to dismiss if the
ground relied upon is not indubitable is now disallowed in view of the
provision requiring presentation of all available arguments and
evidence. Thus, there is no longer any need to defer action until the
trial as the evidence presented, and such additional evidence as the
trial court may require, would already enable the trial court to rule
upon the dubitability of the ground alleged.
Further, it is now specifically required that the resolution on the motion
shall clearly and distinctly state the reasons therefor. This proscribes
the common practice of perfunctorily dismissing the motion for “lack
of merit.” Such cavalier dispositions can often pose difficulty and
misunderstanding on the part of the aggrieved party in taking
recourse therefrom and likewise on the higher court called upon to
resolve the same, usually on certiorari.
The questioned order of the trial court denying the motion to dismiss
with a mere statement that there are justiciable questions which
require a full blown trial falls short of the requirement of Rule 16 set
forth above. Owing to the terseness of its expressed justification, the
challenged order ironically suffers from undefined breadth which is a
hallmark of imprecision. With its unspecific and amorphous thrust, the
issuance is inappropriate to the grounds detailed in the motion to
dismiss.
While the requirement to state clearly and distinctly the reasons for
the trial court’s resolutory order under Sec. 3,Rule 16 of the Rules
does call for a liberal interpretation, especially since jurisprudence
dictates that it is decisions on cases submitted for decision that are
subject to the stringent requirement of specificity of rulings under Sec.
1, Rule 3624 of the Rules, the trial court’s order in this case leaves too
much to the imagination.
9. AQUINO VS AURE
FACTS
Aure Lending filed a Complaint for ejectment against Aquino. In their
Complaint, Aure and Aure Lending alleged that they acquired the subject
property from a Deed of Sale.
Aquino countered that the Complaint lacks cause of action for Aure and Aure
Lending do not have any legal right over the subject property.

MeTC rendered in favor of Aquino and dismissed the Complaint for ejectment
of Aure and Aure Lending for non-compliance with the barangay conciliation
process, among other grounds. Te MeTC observed that Aure and Aquino are
residents of the same barangay but there is no showing that any attempt has
been made to settle the case amicably at the barangay level.
RTC affirmed
CA reversed the MeTC and RTC Decisions and remanding the case to the
MeTC for further proceedings and final determination of the substantive rights
of the parties.
ISSUE: WHETHER OR NOT NON-COMPLIANCE WITH THE BARANGAY
CONCILIATION PROCEEDINGS IS A JURISDICTIONAL DEFECT THAT
WARRANTS THE DISMISSAL OF THE COMPLAINT.
HELD: NO
There is no dispute herein that the present case was never referred to the
Barangay Lupon for conciliation before Aure and Aure Lending instituted Civil
Case No. 17450. In fact, no allegation of such barangay conciliation
proceedings was made in Aure and Aure Lending’s Complaint before the
MeTC.
It is true that the precise technical effect of failure to comply with the
requirement of Section 412 of the Local Government Code on barangay
conciliation (previously contained in Section 5 of Presidential Decree No.
1508) is much the same effect produced by non-exhaustion of administrative
remedies -- the complaint becomes afflicted with the vice of pre-maturity; and
the controversy there alleged is not ripe for judicial determination. The
complaint becomes vulnerable to a motion to dismiss.[22] Nevertheless, the
conciliation process is not a jurisdictional requirement, so that non-
compliance therewith cannot affect the jurisdiction which the court has
otherwise acquired over the subject matter or over the person of the
defendant.[23]
As enunciated in the landmark case of Royales v. Intermediate Appellate
Court[24]:
Ordinarily, non-compliance with the condition precedent prescribed by P.D.
1508 could affect the sufficiency of the plaintiff's cause of action and make
his complaint vulnerable to dismissal on ground of lack of cause of action or
prematurity; but the same would not prevent a court of competent
jurisdiction from exercising its power of adjudication over the case before
it, where the defendants, as in this case, failed to object to such exercise of
jurisdiction in their answer and even during the entire proceedings a quo.
While petitioners could have prevented the trial court from exercising
jurisdiction over the case by seasonably taking exception thereto, they
instead invoked the very same jurisdiction by filing an answer and seeking
affirmative relief from it. What is more, they participated in the trial of the
case by cross-examining respondent Planas. Upon this premise, petitioners
cannot now be allowed belatedly to adopt an inconsistent posture by
attacking the jurisdiction of the court to which they had submitted
themselves voluntarily. x x x (Emphasis supplied.)
Jurisdiction in ejectment cases is determined by the allegations pleaded in the
complaint. As long as these allegations demonstrate a cause of action either
for forcible entry or for unlawful detainer, the court acquires jurisdiction over
the subject matter. This principle holds, even if the facts proved during the
trial do not support the cause of action thus alleged, in which instance the
court -- after acquiring jurisdiction -- may resolve to dismiss the action for
insufficiency of evidence.
x x x. The law, as revised, now provides instead that when the question of
possession cannot be resolved without deciding the issue of ownership,
the issue of ownership shall be resolved only to determine the issue of
possession. On its face, the new Rule on Summary Procedure was extended
to include within the jurisdiction of the inferior courts ejectment cases which
likewise involve the issue of ownership. This does not mean, however, that
blanket authority to adjudicate the issue of ownership in ejectment suits has
been thus conferred on the inferior courts.
WHEREFORE, premises considered, the instant Petition is DENIED. The Court
of Appeals Decision dated 17 October 2001 and its Resolution dated 8 May
2002 in CA-G.R. SP No. 63733 are hereby AFFIRMED. Costs against the
petitioner.
been made?
10. HEIRS OF DR. MARIANO FAVIS, SR. v. JUANA GONZALES
FACTS: Dr. Mariano Favis, Sr. (Dr. Favis) was married to Capitolina Aguilar
(Capitolina) with whom he had seven children. When Capitolina died in March
1994. Dr. Favis married Juana Gonzalez (Juana), his common-law wife with
whom he sired one child, Mariano G. Favis (Mariano), he executed an
affidavit acknowledging Mariano as one of his legitimate children. Mariano is
married to Larcelita D. Favis (Larcelita), with whom he has four children.
Dr. Favis died intestate on July 29, 1995. On October 16, 1994, prior his
death, he allegedly executed a Deed of Donation transferring and conveying
properties in favor of his grandchildren with Juana. Claiming the said
donation prejudiced their legitime, Dr. Favis children with Capitolina,
petitioners herein, filed an action for annulment of the Deed of Donation,
inventory, liquidation, liquidation and partition of property before the RTC
against Juana, Sps. Mariano and Larcelita and their grandchildren as
respondents.
RTC nullified the Deed of Donation. The trial court found that Dr. Favis, at the
age of 92 and plagued with illnesses, could not have had full control of his
mental capacities to execute a valid Deed of Donation.
The Court of Appeals ordered the dismissal of the petitioners nullification
case. The CA motu proprioproprio ordered the dismissal of the complaint for
failure of petitioners to make an averment that earnest efforts toward a
compromise have been made, as mandated by Article 151 of the Family
Court.
ISSUE:
May the appellate court dismiss the order of dismissal of the complaint for
failure to allege therein that earnest efforts towards a compromise have
HELD: The appellate court committed egregious error in dismissing the
complaint.
The appellate court committed egregious error in dismissing the complaint.
The appellate courts decision hinged on Article 151 of the Family Code,
Art.151.No suit between members of the same family shall prosper unless
it should appear from the verified complaint or petition that earnest
efforts toward a compromise have been made, but that the same have
failed. If it is shown that no such efforts were in fact made, the case must
be dismissed.
The appellate court correlated this provision with Section 1, par. (j), Rule
16 of the 1997 Rules of Civil Procedure, which provides: Section 1.
Grounds. - Within the time for but before filing the answer to the
complaint or pleading asserting a claim, a motion to dismiss may be
made on any of the following grounds:(j) That a condition precedent for
filing the claim has not been complied with.
The appellate courts reliance on this provision is misplaced. Rule 16 treats
of the grounds for a motion to dismiss the complaint. It must be
distinguished from the grounds provided under Section 1, Rule 9 which
specifically deals with dismissal of the claim by the court motu proprio.
Section 1, Rule 9 of the 1997 Rules of Civil Procedure. Section 1, Rule 9
provides for only four instances when the court may motu proprio dismiss
the claim, namely: (a) lack of jurisdiction over the subject matter; (b) litis
pendentia; (c) res judicata; and (d) prescription of action.
It was in Heirs of Domingo Valientes v. Ramas cited in P.L. Uy Realty
Corporation v. ALS Management and Development Corporation where
we noted that the second sentence of Section 1 of Rule 9 does not only
supply exceptions to the rule that defenses not pleaded either in a motion
to dismiss or in the answer are deemed waived, it also allows courts to
dismiss cases motu proprio on any of the enumerated grounds. The tenor
of the second sentence of the Rule is that the allowance of a motu propio
dismissal can proceed only from the exemption from the rule on waiver;
which is but logical because there can be no ruling on a waived ground.
A failure to allege earnest but failed efforts at a compromise in a
complaint among members of the same family, is not a jurisdictional
defect but merely a defect in the statement of a cause of action.
In the case at hand, the proceedings before the trial court ran the full
course. The complaint of petitioners was answered by respondents without
a prior motion to dismiss having been filed. The decision in favor of the
petitioners was appealed by respondents on the basis of the alleged
error in the ruling on the merits, no mention having been made about any
defect in the statement of a cause of action. In other words, no motion to
dismiss the complaint based on the failure to comply with a condition
precedent was filed in the trial court; neither was such failure assigned as
error in the appeal that respondent brought before the Court of Appeals.

Therefore, the rule on deemed waiver of the non-jurisdictional defense or

objection is wholly applicable to respondent. If the respondents as
parties-defendants could not, and did not, after filing their answer to
petitioners complaint, invoke the objection of absence of the required
allegation on earnest efforts at a compromise, the appellate court
unquestionably did not have any authority or basis to motu propio order
the dismissal of petitioners complaint.

The correctness of the finding was not touched by the Court of Appeals.
The respondents opted to rely only on what the appellate court
considered, erroneously though, was a procedural infirmity. The trial
court's factual finding, therefore, stands unreversed; and respondents did
not provide us with any argument to have it reversed.

The decision of the Court of Appeals is reversed and set aside and the
Judgment of the Regional Trial Court is AFFIRMED.

GRANTED
Rule 17 – Dismissal of Actions
1. GO v CRUZ
FACTS:
On October 26, 1981, California Manufacturing Co., Inc. brought an action in
the CFI of Manila against Dante Go, accusing him of unfair
competition. California alleged that Dante Go is doing business under the
name and style of "Sugarland International Products," and engaged like
California in the manufacture of spaghetti, macaroni, and other pasta was
selling his products in the open market under the brand name, "Great Italian,"
in packages which were in colorable and deceitful limitation of California's
containers bearing its own brand, "Royal." Its complaint contained an
application for preliminary injunction commanding Dante Go to immediately
cease and desist from the further manufacture, sale and distribution of said
products, and to retrieve those already being offered for sale.
About two weeks later, however, or on November 12, 1981, California filed
a notice of dismissal.
Four days afterwards, or on November 16, 1981, California received by
registered mail a copy of Dante Go's answer with counterclaim dated
November 6, 1981, which had been filed with the Court on November 9,
1981.
On November 19, 1981 a fire broke out at the Manila City Hall destroying
among others the sala of Judge Tengco and the records of cases therein kept,
including that filed by California against Dante Go.
On December 1, 1981, California filed another complaint asserting the same
cause of action against Dante Go, this time with the CFI at Caloocan City. This
second suit was docketed as Civil Case No. C-9702 and was assigned to the
branch presided over by Judge Fernando A. Cruz.
On December 3, 1981, Judge Cruz issued an ex parte restraining order
against Go.
On the day following the rendition of the restraining order, Dante Go filed
the present petition for certiorari, etc. with this Court praying for its
nullification and perpetual inhibition. On December 11, 1981, this Court, in
turn issued a writ of preliminary injunction restraining California, Judge Cruz
and the City Sheriff from enforcing or implementing the restraining order of
December 3, 1981, and from continuing with the hearing on the application
for preliminary injunction in said Civil Case No. C-9702. The scope of the
injunction was subsequently enlarged by this Court's Resolution of April
14,1982 to include the City Fiscal of Manila, who was thereby restrained
from proceeding with the case of unfair competition filed in his office by
California against Dante Go.
ISSUE: WON Sec. 1, Rule 17 of the Rules of Court applies in the present
case.
HELD: No.What marks the loss by a plaintiff of the right to cause dismissal of
the action by mere notice is not the filing of the defendant's answer with the
Court (either personally or by mail) but the service on the plaintiff of said
answer or of a motion for summary judgment. This is the plain and explicit
message of the Rules. "The filing of pleadings, appearances, motions, notices,
orders and other papers with the court, "according to Section 1, Rule 13 of the
Rules of Court, means the delivery thereof to the clerk of the court either
personally or by registered mail. Service, on the other hand, signifies delivery of
the pleading or other paper to the parties affected thereby through their counsel
of record, unless delivery to the party himself is ordered by the court, by any of
the modes set forth in the Rules, i.e., by personal service, service by mail, or
substituted service.
Here, California filed its notice of dismissal of its action in the Manila
Court after the filing of Dante Go's answer butbefore service thereof. Thus
having acted well within the letter and contemplation of the afore-quoted
Section 1 of Rule 17 of the Rules of Court, its notice ipso facto brought about
the dismissal of the action then pending in the Manila Court, without need of
any order or other action by the Presiding Judge. The dismissal was effected
without regard to whatever reasons or motives California might have had for
bringing it about, and was, as the same Section 1, Rule 17 points out, "without
prejudice," the contrary not being otherwise "stated in the notice" and it being
the first time the action was being so dismissed.
There was therefore no legal obstacle to the institution of the second action in
the Caloocan Court of First Instance based on the same claim. The filing of the
complaint invested it with jurisdiction of the subject matter or nature of the
action. In truth, and contrary to what petitioner Dante Go obviously believes,
even if the first action were still pending in the Manila Court, this circumstance
would not affect the jurisdiction of the Caloocan Court over the second suit. The
pendency of the first action would merely give the defendant the right to move
to dismiss the second action on the ground of auter action pendant or litis
pendentia.
Dante Go vs. Hon. Cruz, City Sheriff and California Manufacturing (1989)
[Facts]
- California Manufacturing filed a case against Dante Go for unfair
competition alleging that the latter’s pasta products (Great Italian) such
as spaghetti and macaroni are packed with confusing similarity and
colourable imitation with the former’s Royal Pasta products.
- 2 weeks later, California filed a Notice of Dismissal without prejudice
- 4 days after it received Go’s answer with counterclaim
- Fire broke out at the Manila City Hall and burned the records therein
including the case filed by California
- California filed another complaint based on the same cause of action
against Go in the CFI Caloocan.
- Caloocan judge issued a restraining order directing Go to cease and
desist from manufacturing and selling his products.
- Go claims that the case in Manila is still pending and that the dismissal
sought by California is no longer a matter of right. He further accused
California of forum shopping at Caloocan judge’s sala.
[issue] Whether or not the dismissal of California is in accordance with the Rules
of Court thus allowing it to file a subsequent case
[ruling] Yes, it is in accord with RC. Section 1 Rule 17 mandates that notice of
dismissal must be filed any time before service of answer.
-California filed its notice of dismissal in CFI manila after Go’s filing of answer
but before service thereof. Thus, its notice ipso facto brought about the dismissal
of the action pending in Manila court, without need of any order or action by
the presiding judge therein.
-No legal obstacle to the institution of the second action in the Caloocan CFI
based on the same claim.
2. G.R. No. L-35989 October 28, 1977
JALOVER vs. YTORIAGA
FACTS: This involves a land dispute filed by Ytoriaga and Lopez against
Hedriana and Jalover in the CFI of Iloilo. They claim that they the owners of
the lot, covered by TCT by virtue of the effects of the current of the river
based on the principle of continuous possession and alluvion. They alleged
that Jalover , without their consent had the portion of the land surveyed and
even placed concrete monuments thereof and even took possession of the
land. Jalover , alleged, inter alia, that he is the owner of the land as sole heir
of his mother, who owned the land pursuant to Article 461 of the Civil Code
of the Philippines. Ytoriaga and Lopez offered documentary evidence and
upon admission thereof, rested their case. Jalover prayed the court to dismiss
the complaint with costs against Ytoriaga and Lopez Issues having been
joined, the case was set for trial. Trial was postponed many times stretching to
a period of more than 6 years, until January 26, 1970, when the case was
called for trial, and then Presiding Judge Ramon Blanco dismissed the case,
for failure of private respondents to appear in court, since the Plaintiff did
not take the necessary steps to engage the service of another lawyer in lieu
of Atty. Atol, who since several years ago has been appointed Chief of the
Secret Service of the Iloilo City Police Department. Two years later, private
respondents' lawyer, Atty. Amado B. Atol, filed a motion for reconsideration
alleging that the said respondents did not fail to prosecute because, during
the times that the case was set for hearing, at least one of said respondents
was always present, and the record would show that the transfers of hearing
were all made at the instance of petitioner or his counsel; and, moreover,
private respondents had already finished presenting their evidence.
respondent Judge Venicio Escolin, who succeeded Judge Blanco in Branch V,
issued an order denying the motion for reconsideration on the ground that the
order of dismissal had become final long ago and was beyond the court's
power to amend or change. Private respondents then filed a Petition for
Relief from Judgment dated July 10, 1972, claiming that the order of
dismissal dated January 26, 1970 was void because of lack of due process
and for having been obtained thru fraud, for the petitioner had
misrepresented to the court the status of the case by making Judge Blanco -
who was not the Presiding Judge when private respondents presented their
evidence and rested their case in 1963 - believe that trial had not even
begun. Petitioner opposed the petition for relief contending that private
respondents were served a copy of the order of dismissal on February 5,
1970, and, therefore, pursuant to Section 3, Rule 38 of the Revised Rules of
Court, the petition for relief should have been filed within 60 days from
February 5, 1970, and within 6 months from January 26, 1970, when the
order was issued; hence, the filing of the petition was beyond the
reglementary period.The petition for relief was given due course,setting aside
the orders dated January 26, 1970 and June 23, 1972, and setting the
continuation of the trial for September 15, 1972. Hence, the present recourse
by petitioner.
ISSUE: WON the prior case was validly dismissed for failure to prosecute
HELD: NO
It will be noted that, as found by respondent Judge, private respondents, as
plaintiffs, adduced their evidence and rested their case on September 4,
1963, or more than six years before the dismissal of the case on January 26,
1970. It was, therefore, the turn of petitioner, as defendant, to present his
evidence. In the premises, private respondents court not possibly have failed
to prosecute they were already past the stage where they could still be
charged with such failure. As correctly held by respondent Judge, private
respondents' absence at the hearing scheduled on January 6, 1970 "can only
be construed as a waiver on their part to cross-examine the witnesses that
defendants might present at the continuation of trial and to object to the
admissibility of the latter's evidence." The right to cross-examine petitioner's
witnesses and/or object to his evidence is a right that belongs to private
respondents which they can certainly waive. Such waiver could be nothing
more than the "intentional relinquishment of a known right," and. as such,
should not have been taken against private respondents.
To dismiss the case after private respondents had submitted their evidence
and rested their case, would not only be to hold said respondents accountable
for waiving a right, but also to deny them one of the cardinal primary rights
of a litigant, which is, corollary to the right to adduce evidence, the right to
have the said evidence considered by the court. The dismissal of the case for
failure to prosecute, when in truth private respondents had already presented
their evidence and rested their case, and, therefore, had duly ,prosecuted
their case, would in effect mean a total disregard by the court of evidence
presented by a party in the regular course of trial and now forming part of
the record. The ends of justice would be better served if, in its deliberative
function. the court would consider the said evidence together with the
evidence to be adduced by petitioner.However,relief from judgment under
Rule 38 of the Revised Rules of Court is not the appropriate remedy. A
petition for relief is available only if the judgment or order complained of has
already become final and executory; but here, as earlier noted, the order of
January 26, 1970 never attained finality for the reason that notice thereof
was not served upon private respondents' counsel of record. The petition for
relief may nevertheless be considered as a second motion for reconsideration
or a motion for new trial based on fraud and lack of procedural due process.
Fermin Jalover vs Porferio Ytoriaga, Consolacion Lopez (1977)
[facts]
- This involves a land dispute filed by Ytoriaga and Lopez vs. Jalover
in CFI Iloilo.
- Ytoriaga and Lopez claims that a land which was once under water
automatically belongs to them based on the principle of continuous
possession and alluvion. They alleged that Jalover, without their
consent, had that portion of land surveyed and even placed concrete
monuments thereon and took possession thereof.
- Jalover, in his answer, alleged that his mother and Hedriana are co-
owners of said land; that he, as heir, is entitled to that portion.
- Ytoriaga and Lopez offered documentary evidence and upon
admission thereof, rested their case.
- Continuation of trial was ordered transferred until further assignment,
thus, causing the postponement of said case for a period of more
than 6 years.
- When the case was re-called for trial, Ytoriaga and Lopez failed to
appear. Judge Blanco dismissed the case for their failure to
prosecute.
- 2 years after, Ytoriaga’s counsel filed an MR but denied. Counsel
filed a petition for relief of judgement. It was given due course.
[issue] Whether or not the prior case is validly dismissed for failure to
prosecute.
[ruling] No. Private respondents (Y and L) could not have possibly failed to
prosecute as they were already past the stage of presenting their evidence.
Their absence during the time the case was re-called for trial was a mere
waiver of their right to cross-examine the witnesses.
The dismissal of the case for failure to prosecute when in truth they have
already presented their evidence and rested their case would, in effect, mean
a total disregard of the court of the evidence presented by them in the
regular course of trial.
Further, said dismissal never attained finality as the notice thereof was not
served upon their counsel of record.
3.
Ligaya, Jaime, Silvina, Fausta, Pablo all surnamed Mina vs. Antonia
Pacson, Crispino Medina and Cresencia Mina (1963)
[facts]
- Case 1: The Minas are claiming to be the illegitimate children of
Joaquin Mina while married to Pacson. They are claiming that the
DOS allegedly signed by Joaquin when he was ill was fraudulently
obtained. They pray for the annulment of the DOS and their
recognition as illegitimate children.
- Court in Case 1 ordered that Pacson be impleaded. The Minas failed
to comply with said order, thus, it was dismissed.
- Case 2: The Minas filed another case, this time impleading Pacson but
with the same cause of action and including Medina and Cresencia.
- Defendants filed a MTD on the ground of res judicata.
[issue] Whether or not CC 3015 (case 1) effectively bars the present case
[ruling] Partially. Failure to comply with a court order has the effect of
adjudication upon the merits (Sec 3 Rule 17). Thus, failure to comply with the
court order in CC 3015 justifies the dismissal on the issue of annulment of
DOS.
However, present case is not deemed dismissed as to the issue of filiation and
Pacson, as she is not impleaded in the prior case.
4. G.R. No. L-18707 February 28, 1967
CASEÑAS vs. ROSALES
FACTS: Arañas and Caseñas filed with the CFI of Agusan, a complaint for
specific performance and enforcement of their alleged right under a certain
deed of sale, and damages against the spousesRosales. They alleged that
sometime in 1939, Agustin O. Caseñas acquired from Rodolfo Arañas under a
deed of assignment, the latter's rights and interest over a parcel of land , that
Rodolfo Arañas in turn, acquired the said property from the spouses Jose A.
Rosales and Concepcion Sanchez under a deed of sale ,under the terms of
which, however, the actual transfer of the aforesaid land unto the vendee
would be made only on or before February 18, 1941; and that despite the
above documented transactions, and despite the arrival of the stipulated
period for the execution of the final deed of transfer, the vendors spouses
refused to fulfill their obligation to effect such transfer of the said lot to the
vendee, Rodolfo Arañas or his assignee, the herein appellant, Agustin O.
Caseñas. After the defendants-spouses had filed their answer to the above
complaint, but before trial, the counsel for the plaintiffs gave notice to the
trial court that plaintiff Rodolfo Arañas and defendant Jose A. Rosales had
both died. In view of the said manifestation, the lower court,directed, the
surviving plaintiff, Agustin O. Caseñas, to amend the complaint to effect the
necessary substitution of parties thereon. The said surviving plaintiff, however,
failed altogether to comply with the aforementioned order. LC dismissed the
case for failure on the part of the counsel for the plaintiffs to comply with the
order of this Court which shows abandonment and lack of interest on the part
of the plaintiffs. Casenas, filed with the same CFI of Agusan, another
complaint against the widow and heirs of the late Jose A. Rosales "to quiet,
and for reconveyance of, title to real property, with damages. This suit
referred itself to the very same property litigated under Civil Case No. 261
and asserted exactly the same .The defendants filed a motion to dismiss on
several grounds, namely: res judicata, prescription, lack of cause of action,
failure to include indispensable parties, and that the contract subject of the
complaint was void ab initio. After the plaintiff had filed his opposition to the
above motion, the lcissued the order under appeal dismissing the complaint.
Of the above grounds, though, the lower court relied alone on the defendants'
plea of res judicata, lack of cause of action and prescription.
ISSUE: WON the dismissal of the lower court was proper.
HELD: No, the SC remanded the case to the court of origin.
When certain of the parties to Civil Case No. 261 died and due notice
thereof was given to the trial court, it devolved on the said court to order, not
the amendment of the complaint, but the appearance of the legal
representatives of the deceased in accordance with the procedure and
manner outlined in Rule 3, Section 17 of the Rules of Court. In the case of
Barrameda vs. Barbara, 90 Phil. 718, the SC held that an order to amend the
complaint, before the proper substitution of parties as directed by the
aforequoted rule has been effected, is void and imposes upon the plaintiff no
duty to comply therewith to the end that an order dismissing the said
complaint, for such non-compliance, would similarly be void. In a subsequent
case, Ferriera et al. vs. Gonzalez, et al., G.R. No. L-11567, July 17, 1958,
this court affirmed a similar conclusion on the determination that the
continuance of a proceedings during the pendency of which a party thereto
dies, without such party having been validly substituted in accordance with the
rules, amounts to a "lack of jurisdiction."
The facts of this case fit four squares into the Barrameda case abovecited,
save for the minor variance that in the former two of the litigants died while
only one predeceased the case in Barrameda. Here, as in Barrameda, during
the pendency of civil case, notice was given to the trial court of the deaths of
one of the plaintiffs and one of the defendants in it. Instead of ordering the
substitution of the deceased's legal representatives in accordance with Rule 3,
section 17 of the Rules of Court, the trial court directed the surviving plaintiff
to amend the complaint and when the latter failed to comply therewith, the
said court dismissed the complaint for such non-compliance. We must hold,
therefore, as We did in Barrameda that inasmuch as there was no obligation
on the part of the plaintiff-appellant herein to amend his complaint in Civil
Case No. 261, any such imposition being void, his failure to comply with such
an order did not justify the dismissal of his complaint. Grounded as it was
upon a void order, the dismissal was itself void.Consequently, as the dismissal
of Civil Case No. 261 was void, it clearly may not be asserted to bar the
subsequent prosecution of the same or identical claim.
A cause of action is an act or omission of one party in violation of the legal
right or rights of the other (Ma-ao Sugar Central vs. Barrios, 79 Phil. 666)
and both these elements were clearly alleged in the aforesaid complaint.
The resolution of the issue of prescription may be deferred until after the case
is tried on the merits where the defense pleaded against said issue is the
existence of a trust over the property in dispute.
Agustin Casenas vs. Concepcion Sanchez de Rosales, Romeo Rosales, et.
Al. (1967)
[facts]
- Case 1 prays for the execution of DOS in favour of Casenas: filed by
Rodolfo Aranas(assignor) and Casenas(assignee) vs. Jose Rosales and
Sanchez.
- Rosales and Sanchez filed an answer before trial. Counsel for Aranas
and Casenas manifested the death of Jose Rosales and Aranas. The
court ordered Casenas to amend the complaint. Casenas failed to
comply, thus, it was dismissed.
- Case 2 (present case) prays for quieting and reconveyance of title in
favour of Casenas. Sanchez claims res judicata.
[issue] Whether or not dismissal in the prior case effectively bars the present
case
[ruling] No. The order to amend the complaint is not in accordance with the
procedure of the RC. The court should have ordered the counsel to make a
substitution of the deceased by the legal representatives of the deceased.
Casenas’ failure to comply with the order of the court did not validly justify
the dismissal of the said case.

RULE 18: PRE-TRIAL
Filoil Marketing Corporation vs Dy Pac & Co. (1988)
FACTS:
Filoil commenced an action for collection of sum of money with interest against
Dy Pac on the ground that the latter fails to pay, notwithstanding repeated
demands, the amount due to it for petroleum products bought on credit.
At the hearing set, neither Dy Pac nor its counsel appeared. Filoil was allowed
by the City Court of Manila to proceed ex parte. The said court rendered a
decision on the same date ordering Dy Pac to pay Filoil.
Dy Pac appealed to CFI Manila which immediately set the case for pre-trial.
It ruled that:
“[…]plaintiff and defendant, who are hereby ordered to prepare a
stipulation of facts based on their exhibits already marked and submit the
same to the court… the parties are warned that if they cannot submit the
stipulation of facts, the Court will dismiss the appeal.”
CFI Manila dismissed the case for failure of the parties to submit the required
stipulation of facts and ordered the immediate return of the records to the
City Court for execution.
ISSUE: Whether or not the case can be dismissed on the ground that the
parties failed to submit a stipulation of facts.
RULE:
No. There is no law which compulsorily requires litigants to stipulate at pre-
trial on the facts and issues that may possibly crop up in a particular case,
upon pain dismissal of such case. The process of securing admissions whether
of facts or evidence is essentially voluntary, since stipulations of facts, like
contracts, bind the parties thereto who are not allowed to controvert
statements made therein. Courts cannot compel the parties to enter into an
agreement upon the facts.
Where the parties are unable to arrive at a stipulation of facts and do not
reach an amicable settlement of their controversy, the court must close the
proceedings and go forward the trial of the case. The CFI Manila committed
serious error in dismissing Dy Pac’s appeal from the City Court’s decision
solely on the ground that the parties failed to comply with the order.
Rodolfo Paredes, Tito Alago, Agripino Baybay vs. Ernesto Verano and
CosmeHinunangan (2006)
FACTS:
In Civil Case 2767, a compromise was entered into regarding the complaint
for the establishment of a right of way.Hinunangan granted a 2m-wide right
of way in favour of Paredes, Alago and Baybay in consideration of
P6,000.00.
A complaint for specific performance with damages was filed by Hinunangan
on the ground that Petitioners had blocked the passage way in violation of
the compromise agreement.
Petitioners denied the allegation contending that respondents were not actual
residents of the barangay and that the lot covering the passage of right of
way was sold by Hinunangan to Paredes. Petitioners filed a MTD on the
ground of lack of cause of action. The trial court denied the MTD.
Pre-trial was set on April but was reset on June. However, it did not push
through either because none of the parties appeared. On Nov, the RTC was
informed of a proposed settlement. The case was reset to January 2004. On
January, private respondents and their counsel were present. Petitioners were
also present but not their counsel.
RTC allowed respondents to present evidence ex parte for failure of the
defendant’s counsel to appear.
ISSUE: Whether or not the absence of counsel for petitioners at the pre-trial,
with all petitioners themselves present, is a ground to declare them in default
RULING: No. Absence of counsel at pre-trial does not ipso facto authorise the
judge to declare them in default. Sec. 4, Rule 18 imposes duty on litigating
parties and their respective counsel to appear at pre-trial. Sec. 5 penalizes
the failure to appear of either plaintiff or defendant but not of their counsel.
A judgment of default against one who failed to attend at pre-trial or even
to file an answer implies a waiver only of their right to be heard and to
present evidence to support their allegation but not all their other rights.
Paredes vs. Verano
Facts:
1. The legal battle between the parties began with a complaint for the
establishment of a right of way filed by the petitioners against
respondents. The complaint culminated in a judgment by compromise.
2. In the Compromise Agreement, respondent Cosme Hinunangan
granted a 2 meter-wide right of way in favor of petitioners in
consideration of the amount of Php 6,000.00 which petitioners
agreed to pay.
3. Alleging that petitioners had blocked the passage way in violation of
the Compromise Agreement, respondents filed a complaint for
specific performance with damages against petitioners.
4. In their answer, petitioners denied having violated the Compromise
Agreement, and alleged that like them, respondents were not actual
residents of Barangay Tagnipa where the “road right of way” was
established and that respondent Cosme had already sold his only
remaining lot in the vicinity to petitioner Paredes.
5. Petitioners filed a motion to dismiss on the ground of lack of action.
TC-DENIED.
6. Pre-trial was initially set for 24 April 2003, but this was reset to 3
June 2003. But the pre-trial set on 3 June 2003 did not push through
either because none of the parties appeared. So, pre-trial was reset
to 11 November 2003. However, petitioner Baybay was present in
court along with other defendants was called. RTC was informed then
of a proposed settlement between the parties, although Baybay
qualified his reaction by telling the court that he would first have to
inform his lawyer of the said propodal.
7. RTC reset the pre-trial for 23 January 2004.
8. Before the new pre-trial date, counsel for petitioners filed a
Manifestation of Willingness to Settle With Request for Cancellation
dated 5 January 2004.
9. The hearing did push through on 23 January 2004. The private
respondents and their counsel were present. So were petitioners
Baybay and Paredes, and co-defendant Alago, but not their counsel.
10. RTC allowed respondents to present their evidence ex parte, “for
failure of the defendants’ counsel to appear before the RTC.
11. Motion for recon – DENIED.
12. Petition for certiorari – CA – dismissed for failure to attach duplicate
orig copies of annexes to petition as well as other pleadings relevant
and pertinent to the petition.
13. Motion for recon with motion to admit additional exhibits – DENIED.
CA ruled that even with the submission by petitioners of the required
pleadings and documents, the instant petition must nevertheless failed.
It conceded that under Sec 5 Rule 18 of the 1997 Rules of Civil
Procedure, it is the failure of the defendant, and not defendant’s
counsel, to appear at the pre-trial that would serve cause to allow
plaintiff to present evidence ex parte.
Issue: Whether the absence of the counsel for defendants at the pre-trial, with
all defendants themselves present, is a ground to declare defendants in
default and to authorize plaintiffs to present evidence ex parte.
Held: No.
Section 4. Appearance of parties. — It shall be the duty of the parties and
their counsel to appear at the pre-trial. The non-appearance of a party may
be excused only if a valid cause is shown therefor or if a representative shall
appear in his behalf fully authorized in writing to enter into an amicable
settlement, to submit to alternative modes of dispute resolution, and to enter
into stipulations or admissions of facts and of documents.
Section 5. Effect of failure to appear. — The failure of the plaintiff to appear
when so required pursuant to the next preceding section shall be cause for
dismissal of the action. The dismissal shall be with prejudice, unless other-wise
ordered by the court. A similar failure on the part of the defendant shall be
cause to allow the plaintiff to present his evidence ex parte and the court to
render judgment on the basis thereof.
Section 4 imposes the duty on litigating parties and their respective
counsel during pre-trial. The provision also provides for the instances where
the non-appearance of a party may be excused. Nothing, however, in Sec 4
provides for a sanction should the parties or their respective counsel be
absent during pre-trial. The penalty is provided for in Sec 5 which penalizes
the failure to appear of either the plaintiff or the defendant, and not their
respective counsel.
 The absence of counsel for defendants at pretrial does not ipso facto The service of summons upon petitioner first attempted by personal service,
authorize the judge to declare the defendant as in default and order the and subsequently by substituted service more than meets the requirements set
presentation of evidence ex parte. Nothing in the rules of court sanctions the by the Rules of Court.
presentation of evidence ex parte upon instances when counsel for defendant
is absent during pre-trial. The Rules do not countenance stringent construction
at the expense of justice and equity.

Erlinda Guanzon vs Andrew Arradaza, Francisca Maidin, ErlindaLebita

(2006)

FACTS:
Arradaza boarded a jeepney owned and operated by Maidin and Lebita.
Following the jeepney was a dump truck registered in the name of Guanzon.
The two vehicles collided. Arradaza sustained injuries. Despite several
demands, Maidin and Lebita failed to reimburse Arradaza of the actual
damages he incurred. Arradaza filed a case against Maidin and Lebita. The
latter filed their answer arguing that it was the truck driver who was at fault.
Therefore, Guanzon, being the employer, failed to exercise the diligence of a
god father in selecting and hiring the driver.

Summons were served to Guanzon through substituted service via a certain

Susan Ador. Guanzon failed to file an answer and was declared in default.

2 years later, Guanzon filed a MTD on the ground that the court did not
acquire jurisdiction over her because of the defective service of summons.

MeTCadjuged in favour of Arradaza.Guanzon appealed to the RTC Manila.

RTC affirmed the MeTC decision. Appeal to the CA was also denied.

ISSUE: Whether or not there was proper service of summons on Guanzon.

RULING: Yes. The motor vehicle registration of the truck is under the name of
Guanzon with address at Manresa, QC. The service of summons therein failed
because Guanzon was not known in the said address. Upon inquiry with the
SEC, it was found out that Guanzon was the director of Guanzon Lime Dev’t
Company with address at Caloocan. Service of summons was effected there
through Susan Ador, of suitable age and working in the premises.