CIVIL PROCEDURE Notes/Case Digests – Selected Cases (4-Manresa 2008-2009) Jurisdiction

VILLENA vs. PAYOYO (April 27, 2007) FACTS: Payoyo and Novaline, Inc., through its president, Villena, entered into a contract for the delivery and installation of kitchen cabinets in Payoyo's residence. The cabinets were to be delivered within 90 days from downpayment of 50% of the purchase price. A downpayment was paid. Another contract was entered into for the delivery of home appliances and Villena also paid the downpayment. Villena faled to install the kitchen cabinets and deliver the appliances. Payoyo filed a complaint for recovery of a sum of money and damages against Villena. Petitioner posits that the RTC has no jurisdiction over the complaint since it is mainly for recovery of a sum of money in the amount of P184,821.50 which is below the jurisdictional amount set for RTCs. ISSUE: Whether or not the trial court has jurisdiction over the case RULING: YES, RTC has jurisdiction. In determining the jurisdiction of an action whose subject is incapable of pecuniary estimation, the nature of the principal action or remedy sought must first be ascertained. If it is primarily for the recovery of a sum of money, the claim is considered capable of pecuniary estimation and the jurisdiction of the court depends on the amount of the claim. But, where the primary issue is something other than the right to recover a sum of money, where the money claim is purely incidental to, or a consequence of, the principal relief sought, such are actions whose subjects are incapable of pecuniary estimation, hence cognizable by the RTCs. Verily, what determines the nature of the action and which court has jurisdiction over it are the allegations of the complaint and the character of the relief sought. The complaint, albeit entitled as one for collection of a sum of money with damages, is one incapable of pecuniary estimation; thus, one within the RTC's jurisdiction. The allegations therein show that it is actually for breach of contract. A case for breach of contract is a cause of action either for specific performance or rescission of contracts. An action for rescission of contract, as a counterpart of an action for specific performance, is incapable of pecuniary estimation, and therefore falls under the jurisdiction of the RTC. The averments in the complaint show that Payoyo sought the cancellation of the contracts and refund of the downpayments since Villena failed to comply with the obligation to deliver the appliances and install the kitchen cabinets subject of the contracts. While the respondent prayed for the refund, this is just incidental to the main action, which is the rescission or cancellation of the contracts. Petition DENIED. (Jazzie Sarona )

LARANO vs. SPS. CALENDACION (June 19, 2007) FACTS: Larano owns a parcel of riceland. Petitioner and respondents executed a Contract to Sell. Downpayment of P 500,000 of the P 5M purchase price was made. Pending full payment of the purchase price, possession of the riceland was transferred to respondents under the condition that they shall account for and deliver the harvest from said riceland to petitioner. Respondents, however, failed to pay the installments and to account for and deliver the harvest from said riceland. Petitioner sent respondents a demand letter to vacate but such demand went unheeded. Petitioner filed a complaint against the respondents for unlawful detainer before the MTC, praying that respondents be directed to vacate the riceland and to pay P400,000.00 per year from September 1998 until they vacate, as reasonable compensation for the use of the property, P120,000.00 as attorney’s fees, and P50,000.00 as litigation expenses. Respondents alleged that the MTC has no jurisdiction over the case because the complaint failed to allege that a demand to pay and to vacate the riceland was made upon them. ISSUE: Whether or not the complaint is one for unlawful detainer. RULING: NO, it is not for unlawful detainer. Jurisdiction in ejectment cases is determined by the allegations pleaded in the complaint. The test for determining the sufficiency of those allegations is whether, admitting the facts alleged, the court can render a valid judgment in accordance with the prayer of the plaintiff. In unlawful detainer, the possession was originally lawful but became unlawful by the expiration or termination of the right to possess; hence, the issue of rightful possession is decisive for, in such action, the defendant is in actual possession and the plaintiff’s cause of action is the termination of the defendant’s right to continue in possession.

Petitioner, as vendor, must comply with two requisites for the purpose of bringing an ejectment suit: (a) there must be failure to pay the installment due or comply with the conditions of the Contract to Sell; and (b) there must be demand both to pay or to comply and vacate within the periods specified in Section 2 of Rule 70, namely: 15 days in case of land and 5 days in case of buildings. Thus, mere failure to pay the installment due or violation of the terms of the Contract to Sell does not automatically render a person's possession unlawful. Furthermore, the giving of such demand must be alleged in the complaint; otherwise, the MTC cannot acquire jurisdiction over the case. What is clear is that in the Complaint, petitioner alleged that respondents had violated the terms of the Contract to Sell. However, the Complaint failed to state that petitioner made demands upon respondents to comply with the conditions of the contract – the payment of the installments and the accounting and delivery of the harvests from the subject riceland. The 10-day period granted respondents to vacate even fell short of the 15-day period mandated by law. When the complaint does not satisfy the jurisdictional requirements of a valid cause for unlawful detainer, the MTC does not have jurisdiction to hear the case. Petition DENIED. (Jazzie Sarona )

BAUTISTA vs. MAG-ISA VDA. DE VILLENA (Sept. 13, 2004) FACTS: A parcel of land was originally owned by Caluag. The original tenant-tiller of this land was Aquilino Villena, husband of respondent. The tenancy relationship dated back to 1946 and continued even after the demise of Aquilino through his surviving spouse, Susana. Upon the instruction of Caluag, the house of Susana was transferred to the subject lot, because Caluag had given Susana a portion thereof with an area of 1000 square meters as home lot and seedbed. Since then, Susana had been in peaceful possession thereof until 1987 when a case for ejectment was filed against her by petitioners. Petitioners argue that no tenancy relationship exists with respect to the subject lot, since the property is a residential and not an agricultural land. They further contend that even on the assumption that a tenancy relationship existed, the CA erred in considering the area as respondent’s home lot. According to them, a home lot should be constituted on the farm that the lessee is tilling, not on the residential lot of the landowner. For these reasons, they claim that jurisdiction lies with the regular courts, not with the DARAB. ISSUE: Whether or not this case falls under the exclusive jurisdiction of the Department of Agrarian Reform Adjudication Board (DARAB) HELD: YES, it falls under the exclusive jurisdiction of the DARAB. For agrarian reform cases, jurisdiction is vested in the Department of Agrarian Reform (DAR); more specifically, in the DARAB. The instant case involves the tenancy rights of respondent against petitioners. Consequently, there exists an agrarian dispute cognizable by the DARAB. Respondent was a tenant of petitioners’ predecessors. Respondent’s rights as an agricultural lessee are therefore enforceable against Maria Lopez and Lorenzo Caluag’s transferees, herein petitioners. There is no legal basis for petitioners’ restrictive interpretation of the jurisdiction of the DARAB. Its jurisdiction encompasses “all agrarian disputes, cases, controversies, and matters or incidents involving the implementation of all agrarian laws.” A home lot is incident to a tenant’s rights. The right to retain or remove it is therefore an agrarian dispute that should be resolved by the DARAB. Having situated the home lot on the subject lot since 1957, respondent can be ejected therefrom only for cause or upon proof that the tenancy relationship has already been severed. Petitioners should prove before the DARAB their grounds for ejectment. Petition DENIED. (Jazzie Sarona )

OMICTIN, vs.COURT OF APPEALS (January 22, 2007) FACTS:Private respondent George I. Lagos was charged with the crime of estafa under Article 315, par. 1(b) of the Revised Penal Code before the Regional Trial Court (RTC). He filed a motion to suspend proceedings on the basis of a prejudicial question because of a pending petition with the Securities and Exchange Commission (SEC) involving the same parties. The trial court denied respondent's motion to suspend proceedings. The CA granted the motion to suspend proceedings. The SEC case was transferred to the Regional Trial Court (RTC) pursuant to A.M. No. 00-11-03-SC implementing the Securities and Regulation Code (Republic Act No. 8799) enacted on July 19, 2000, vesting in the RTCs jurisdiction over intra-corporate disputes.

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CIVIL PROCEDURE Notes/Case Digests – Selected Cases (4-Manresa 2008-2009) ISSUE:Whether or not a prejudicial question exists to warrant the suspension of the criminal proceedings pending the resolution of the intra-corporate controversy that was originally filed with the SEC. RULING:Yes. A prejudicial question is defined as that which arises in a case, the resolution of which is a logical antecedent of the issue involved therein and the cognizance of which pertains to another tribunal. Here, the case which was lodged originally before the SEC and which is now pending before the RTC by virtue of Republic Act No. 8799 involves facts that are intimately related to those upon which the criminal prosecution is based. Ultimately, the resolution of the issues raised in the intra-corporate dispute will determine the guilt or innocence of private respondent in the crime of estafa filed against him by petitioner before the RTC of Makati. ISSUE:Whether or not the doctrine of primary jurisdiction applies RULING: Yes.Likewise, by analogy, the doctrine of primary jurisdiction may be applied in this case. The issues raised by petitioner particularly the status of Saag Phils., Inc. vis-à-vis Saag (S) Pte. Ltd., as well as the question regarding the supposed authority of the latter to make a demand on behalf of the company, are proper subjects for the determination of the tribunal hearing the intra-corporate case which in this case is the RTC of Mandaluyong,. These issues would have been referred to the expertise of the SEC in accordance with the doctrine of primary jurisdiction had the case not been transferred to the RTC of Mandaluyong. Strictly speaking, the objective of the doctrine of primary jurisdiction is to guide a court in determining whether it should refrain from exercising its jurisdiction until after an administrative agency has determined some question or some aspect of some question arising in the proceeding before the court. The court cannot or will not determine a controversy involving a question which is within the jurisdiction of the administrative tribunal prior to resolving the same, where the question demands the exercise of sound administrative discretion requiring special knowledge, experience and services in determining technical and intricate matters of fact. While the above doctrine refers specifically to an administrative tribunal, the Court believes that the circumstances in the instant case do not proscribe the application of the doctrine, as the role of an administrative tribunal such as the SEC in determining technical and intricate matters of special competence has been taken on by specially designated RTCs by virtue of Republic Act No. 8799. Hence, the RTC where the intra-corporate case is pending has the primary jurisdiction to determine the issues under contention relating to the status of the domestic corporation, Saag Phils., Inc., vis-à-vis Saag Pte. Ltd.; and the authority of petitioner to act on behalf of the domestic corporation, the determination of which will have a direct bearing on the criminal case. The law recognizes that, in place of the SEC, the regular courts now have the legal competence to decide intra-corporate disputes. (Norliza Mamukid )

RIVERA vs. DEL ROSARIO HELD: Respondents paid docket fees as assessed by clerk of court but was later found incorrect. They should only pay the deficiency and jurisdiction is not automatically lost.

(Kahlil Elbanbuena )

UNITED OVERSEAS BANK VS. HON. JUDGE REYNALDO ROS August 07, 2007

FACTS:Private respondent Rosemoor Mining and Development Corporation filed an action for damages, accounting, release of the balance of the loan and machinery and annulment of foreclosure sale against petitioner before the RTC of Manila. Petitioner filed an Urgent Motion to Dismiss the private respondent's complaint on the ground of improper venue. Consequently, the private respondent amended its Complaint, this time praying for Accounting, Release of the Balance of the Loan and Damages. The RTC of Manila issued an Omnibus Resolution denying the same for lack of merit. Private respondent filed a Second Amended Complaint, dropping Lourdes Pascual as plaintiff and impleaded the officers of the petitioners as defendants. Private respondent filed another action for Injunction with Damages before the RTC of Malolos, Bulacan. The filing of the above mentioned case prompted the petitioner to file a second Motion to Dismiss before the RTC of Manila on the ground of forum shopping. The Manila RTC denied the second Motion to Dismiss for lack or merit.

A third Motion to Dismiss Civil Case was filed by the petitioner with the Manila RTC this time raising the issue of jurisdiction. The Manila RTC denied petitioner's third Motion to Dismiss Civil Case on the ground that petitioner was already estopped to raise the issue. Court of Appeals affirmed the Manila RTC Orders. ISSUE:Whether or not an appeal may be taken from an interlocutory order RULING:No appeal under Rule 45 of the Revised Rules of Court, may be taken from an interlocutory order. In case of denial of an interlocutory order, the immediate remedy available to the aggrieved party is to file an appropriate Special Civil Action for Certiorari under Rule 65 of the Revised Rules of Court. The word interlocutory refers to something intervening between the commencement and the end of the suit which decides some point or matter but is not a final decision of the whole controversy. A "final" judgment or order is one that finally disposes of a case, leaving nothing more to be done by the Court in respect thereto, e.g., an adjudication on the merits which, on the basis of the evidence presented on the trial, declares categorically what the rights and obligations of the parties are and which party is in the right; or a judgment or order that dismisses an action on the ground, for instance, of res judicata or prescription. Once rendered, the task of the Court is ended, as far as deciding the controversy or determining the rights and liabilities of the litigants is concerned. Nothing more remains to be done by the Court except to await the parties' next move (which among others, may consist of the filing of a motion for new trial or reconsideration, or the taking of an appeal) and ultimately, of course, to cause the execution of the judgment once it becomes "final" or, to use the established and more distinctive term, "final and executory." Conversely, an order that does not finally dispose of the case, and does not end the Court's task of adjudicating the parties' contentions and determining their rights and liabilities as regards each other, but obviously indicates that other things remain to be done by the Court, is "interlocutory" e.g., an order denying motion to dismiss under Rule 16 of the Rules, or granting of motion on extension of time to file a pleading, or authorizing amendment thereof, or granting or denying applications for postponement, or production or inspection of documents or things, etc. Unlike a "final" judgment or order, which is appealable, as above pointed out, an "interlocutory" order may not be questioned on appeal except only as part of an appeal that may eventually be taken from the final judgment rendered in the case. Since an Order denying a Motion to Dismiss does not finally dispose of the case, and in effect, allows the case to proceed until the final adjudication thereof by the court, then such order is merely interlocutory in nature. We find occasion here to state the rule, once more, that an order denying a motion to dismiss is merely interlocutory and therefore not appealable, nor can it be subject of a petition for review on certiorari. Such order may only be reviewed in the ordinary course of law by an appeal from the judgment after trial. The ordinary procedure to be followed in that event is to file an answer, go to trial, and if the decision is adverse, reiterate the issue on appeal from the final judgment. As a general rule, an interlocutory order is not appealable until after the rendition of the judgment on the merits for a contrary rule would delay the administration of justice and unduly burden the courts. However, we have ruled that certiorari is an appropriate remedy to assail an interlocutory order (1) when the tribunal issued such order without or in excess of jurisdiction or with grave abuse jurisdiction and (2) when the assailed interlocutory order is patently erroneous and the remedy of appeal would not afford adequate and expeditious relief. ISSUE:Whether or not petitioner is in estoppel to question the jurisdiction of the Court. RULING:Yes."Unlike Manchester, however, were the jurisdictional issue arising from insufficiency of the docket fee paid was seasonably raised in the answer of the defendant in the trial court, in this case, the issue is being raised for the first time. Petitioner submitted to the jurisdiction of the trial court without question. It filed a counterclaim seeking affirmative reliefs, and actively took part in the trial. A party who voluntarily participates in the trial cannot later on raise the issue of the Court's lack of jurisdiction. In the case at bar, the said [petitioner] filed their counter-claim seeking affirmative relief and then filed a motion to dismiss without raising the issue of non-payment of docket fees. And when plaintiff's witness Dra. Lourdes S. Pascual was presented on direct examination the said [petitioner] did not object and participated in the proceedings. It is only when the said witness was to be cross examined that the

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CIVIL PROCEDURE Notes/Case Digests – Selected Cases (4-Manresa 2008-2009) issue of non-payment of docket fees was raised. Clearly, the said [petitioner] [is] in estoppel to question the jurisdiction of the Court. It is incumbent upon the petitioner to file a Motion to Dismiss at the earliest opportune time to raise the issue of the court's lack of jurisdiction, more so, that this issue is susceptible to laches. Petitioner's failure to seasonably raise the question of jurisdiction leads us to the inevitable conclusion that it is now barred by laches to assail the Manila RTC's jurisdiction over the case. (Norliza Mamukid )

RIVERA vs. RIVERA HELD: Unlawful detainer case is still under the jurisdiction of the MeTC even if there was an assertion of ownership. Lower court’s adjudication of ownership is only provisional.

(Kahlil Elbanbuena )

SEA POWER vs. CA HELD: From NLRC to SC not valid. Petition should be Rule 45 to CA. Rule 65 to SC only if there is grave abuse of discretion

(Kahlil Elbanbuena )

LAND BANK OF THE PHILIPPINES VS. ASCOT HOLDINGS October 19, 2007

FACTS: After the Philippine Airlines (PAL) was privatized, Land Bank purchased from the National Government PAL shares. Minority stockholders in PR Holdings filed a case with the Securities and Exchange Commission (SEC), seeking the distribution of PR Holdings’ shares of stock in PAL to its stockholders in proportion to their equity. Land Bank, along with PNB, DBP, AFP-RSBS and GSIS, have the so-called put-option to sell their PAL shares of stock to respondents and the latter are obligated to buy the same at Five Pesos (P5.00) per share on the sixth year after the effectivity of the Stockholders’ Agreement. Instead of honoring the Stockholders' Agreement, respondents filed with the RTC of Makati a complaint against Land Bank, PNB, DBP, GSIS, AFP-RSBS and the Republic of the Philippines, praying that they be released from the obligation to buy the PAL shares of petitioner and other defendants therein at P5.00 per share, as earlier agreed upon under the Stockholders' Agreement, on ground of alleged radical change in the conditions prevailing at the time the said agreement was entered and the present. . Trial court ruled in favor of the respondents. Trial court denied Land Bank's motion for reconsideration. Therefrom, Land Bank decided to go to the CA on a petition for review. For the purpose, it filed with the CA, a motion for extension of time to file the intended petition for review. The motion was denied by the CA. ISSUE:Whether or not the filing of a motion for reconsideration before the trial court toll the reglementary period to appeal the judgment RULING:No. It is beyond quibbling that the assailed “Judgment” in Civil Case was issued by the RTC in the exercise of its special jurisdiction over intra-corporate controversies under R.A. No. 8799. Civil Case was, therefore, governed by the Interim Rules of Corporate Rehabilitation and the Interim Rules of Procedure Governing Intra-Corporate Controversies under R.A. No. 8799, as well as A.M. No. 04-9-07-SC of this Court prescribing the mode of appeal from decisions of the RTC in intra-corporate controversies. Under Section 8(3), Rule 1 of the Interim Rules of Procedure Governing Intra-Corporate Controversies Under R.A. No. 8799, motion for new trial, or for reconsideration of judgment or order, or for re-opening of trial are prohibited pleadings in said cases. Hence, the filing by petitioner of a motion for reconsideration before the trial court did not toll the reglementary period to appeal the judgment via a petition for review under Rule 43 of the 1997 Rules of Civil Procedure, as amended. As a consequence, the CA has no more jurisdiction to entertain the petition for review which Land Bank intended to file before it, much less to grant the motion for extension of time for the filing thereof. The prohibited motion for reconsideration filed by the petitioner with the trial court did not suspend the period to appeal the RTC’s “Judgment” . Consequently, that “Judgment” became final and executory 15-days thereafter. When petitioner filed a motion for extension to file a petition for review in the CA one hundred twenty four (124) days after it received the RTC “Judgment,” there was no more period to extend. Given these undeniable facts, the CA cannot be faulted for denying

petitioner’s motion for extension. There is no abuse, much less grave abuse, of discretion, to speak of. (Norliza Mamukid )

PILIPINO TELEPHONE V. DELFINO TECSON HELD: A contract of adhesion per se is not inefficacious. Respondent also secured six contracts, and therefore cannot be said to have no opportunity to read and go over the terms and conditions of the contracts. (Kahlil Elbanbuena ) Rule 4 – Venue of Actions

UNIVERSAL ROBINA CORPORATION vs.ALBERT LIM October 5, 2007

FACTS: Petitioner filed with the Regional Trial Court, a complaint against respondent for a sum of money. The trial court issued an Order dismissing the complaint motu proprio on grounds of lack of jurisdiction and improper venue. ISSUE: Whether the trial court may dismiss motu proprio petitioner's complaint on the ground of improper venue. RULING: No. In personal actions, the plaintiff may commence an action either in the place of his or her residence or the place where the defendant resides. However, the parties may agree to a specific venue which could be in a place where neither of them resides. Corollarily, Section 1, Rule 9 of the 1997 Rules of Civil Procedure provides for the instances when the trial court may motu proprio dismiss a claim, thus: Section 1. Defenses and objections not pleaded. Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. However, when it appears from the pleadings or the evidence on record that the court has no jurisdiction over the subject matter, that there is another action pending between the same parties for the same cause, or that the action is barred by a prior judgment or by statute of limitations, the court shall dismiss the claim. Implicit from the above provision is that improper venue not impleaded in the motion to dismiss or in the answer is deemed waived. Thus, a court may not dismiss an action motu proprio on the ground of improper venue as it is not one of the grounds wherein the court may dismiss an action motu proprio on the basis of the pleadings. (Norliza Mamukid ) Rule 5 – Summary Procedure

LUCAS vs. FABROS January 31, 2000 FACTS: Gloria Lucas charged respondent Judge Amelia A. Fabros with Gross Ignorance of the Law and Grave Abuse of Discretion. Complainant alleged that Judge Fabros issued an Order in an ejectment case granting the plaintiff's MFR of the Order which dismissed the case for failure of plaintiff and her counsel to appear at the Preliminary Conference. Complainant averred that it is elementary, under the Rules of Summary Procedure that an motion MFR is prohibited, but respondent judge, in violation of the rule, granted the motion. She added that, notwithstanding the fact that the respondent herself had pointed out in open court that the case is governed by the Rules on Summary Procedure; the judge ordered the revival of the case. Further, complainant alleged that the actuations of the respondent is in blatant disregard of the established rules on procedure, and it is an instance where the doctrine of IPSA LOQUITOR may once again may be applied by the Court to discipline judges. Respondent Judge Fabros maintained that she could not be guilty of gross ignorance of the law as she knows that a motion for reconsideration of judgment is a prohibited motion in an ejectment case. She explained that although there is already a judgment dismissing the case, she granted the plaintiff's motion for reconsideration in the interest of justice since the reasons stated in the motion for reconsideration are meritorious. ISSUE: WON Judge Fabros erred in granting the MFR RULING: No. As a rule an MFR is a prohibited pleading under Section 19 of the Revised Rule on Summary Procedure. This rule, however, applies only where the judgment sought to be reconsidered is one rendered on the merits. As held by the Court in an earlier case: "The motion prohibited by this Section is that which seeks reconsideration of the judgment rendered by the court after trial on the merits of the case." Here, the order of dismissal issued by respondent judge due to failure of a party to

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CIVIL PROCEDURE Notes/Case Digests – Selected Cases (4-Manresa 2008-2009) appear during the preliminary conference is obviously not a judgment on the merits after trial of the case. Hence, a motion for the reconsideration of such order is not the prohibited pleading contemplated under the present Rule on Summary Procedure. Thus, respondent judge committed no grave abuse of discretion, nor is she guilty of ignorance of the law, in giving due course to the motion for reconsideration subject of the present complaint. (Lendl Floyd Montes ) Rule 7 – Parts of a Pleading

PONCIANO vs. PARENTELA May 9, 2000 FACTS: Respondents Ildefonso and Leonora Clamosa filed a complaint for a sum of money against petitioners Claro and Gloria Ponciano for unpaid cost of labor and materials incurred by them in repairing petitioner's house. Petitioners filed their answer with compulsory counterclaim, claiming that they have paid the total contract price agreed upon; that despite this, the work of respondents was defective; and that respondents abandoned the renovation before it was completed. The trial court ordered that petitioners’ counterclaim be stricken off for failure to comply with Administrative Circular No. 04-94, which requires an affidavit of non-forum shopping for all initiatory pleadings in all courts. Petitioners filed an MFR which the trial court denied. ISSUE: WON an answer which asserts a compulsory counterclaim must include a certificate of non-forum shopping, and if so, whether or not the dismissal of such compulsory counterclaim by the trial court due to the absence of such certification has the effect of a dismissal with prejudice so as to bar the party from re-filing such compulsory counterclaim. RULING: No. This very same issue was confronted in the case of Santo Tomas University Hospital v. Surla, 8 wherein we held that the above-quoted provisions of administrative Circular No. 04-94 do not apply to compulsory counterclaims. Speaking for the Court, Justice Vitug explained that: It bears stressing, once again, that the real office of Administrative Circular No. 04-94, made effective on 01 April 1994, is to curb the malpractice commonly referred to also as forum-shopping. The language of the circular distinctly suggests that it is primarily intended to cover an initiatory pleading or an incipient application of a party asserting a claim for relief. In the case at bar, there is no doubt that the counterclaims pleaded by petitioners in their answers are compulsory in nature. The filing of a separate action by petitioners would only result in the presentation of the same evidence as in Civil Case No. TM-601. Proceeding from our ruling in Santo Tomas University Hospital, petitioners need not file a certification of non-forum shopping since their claims are not initiatory in character, and therefore, are not covered by the provisions of Administrative Circular No. 04-94.

(Lendl Floyd Montes )

Rule 9 – Effect of Failure to Plead

Philippine Banking Corporation v. CA HELD: As a rule, proceedings already taken should not be disturbed. Where a witness of the plaintiff was presented while the defendant was declared in default, and the order of default was subsequently lifted, it is within the trial court’s decision to reopen the evidence submitted by the plaintiff and allow the defendant to challenge the same, by cross-examining the plaintiff’s witnesses or introducing countervailing evidence. (Kahlil Elbanbuena ) RULE 10 – Amended and Supplemental Pleadings

PHILIPPINE EXPORT AND FOREIGN LOAN GUARANTEE CORPORATION vs. PHILIPPINE INFRASTRUCTURES, INC.,

January 13, 2004 FACTS: The Petitioner filed a complaint for collection of sum of money against herein respondents on the basis of Letters of Guarantee it issued in favor of the PNB as security for various credit accommodations extended by PNB to respondents. During the hearing, petitioner presented as its witness its treasury department manager who testified that the amount of P19M was paid by it to the PNB to cover the principal loan and interests, as

guaranteed by petitioner. Consequently, petitioner filed a Motion to Amend Complaint to Conform to Evidence pursuant to Section 5, Rule 10 of the Revised Rules of Court, seeking to amend its Complaint. Acting on the motion to amend, the trial court dismissed the case without prejudice on the ground of failure of the complaint to state a cause of action. On petition for review on certiorari, the CA likewise dismissed the petition on the ground that the real purpose of petitioner in asking the trial court for leave to amend its complaint was not ostensibly to make the complaint conform to the evidence presented, as petitioner alleges, but to introduce a cause of action then non-existing when the complaint was filed. ISSUE: Whether or not the lower court and the CA erred in dismissing the case instead of granting Petitioner’s Motion to Amend. HELD: Yes. It should be stressed that amendment was sought after petitioner had already presented evidence, more specifically, the testimony of petitioner’s Treasury Department Manager. It is settled that even if the complaint be defective, but the parties go to trial thereon, and the plaintiff, without objection, introduces sufficient evidence to constitute the particular cause of action which it intended to allege in the original complaint, and the defendant voluntarily produces witnesses to meet the cause of action thus established, an issue is joined as fully and as effectively as if it had been previously joined by the most perfect pleadings. Likewise, when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Evidently, herein respondents’ failure to object to the evidence at the time it is presented in court is fatal to their cause inasmuch as whatever perceived defect the complaint had was cured by the introduction of petitioner’s evidence proving actual loss sustained by petitioner due to payment made by it to PNB. Thus, the contention of respondents that the amendment would introduce a subsequently acquired cause of action as there was none at the time the original complaint was filed, is untenable.

( Sahara Alia Silongan )

Rule 13- Filing and Service of Pleadings, Judgments and Other Papers

ALFONSO vs. ANDRES October 4, 2002 FACTS: The original case involved a complaint for accion publiciana. It was decided against herein petitioners in favor of the spouses Andres, now the respondents. On July 15, 1997, a copy of the decision was served upon petitioners. On July 17, 1997, petitioners filed a Notice of Appeal, without the assistance of counsel and without payment of the docket and other lawful fees. On July 21, 1997, the RTC granted the notice of appeal. On August 25, 1997, respondents herein, through counsel, filed a motion to dismiss petitioners’ appeal, citing Section 1(c), Rule 50 of the 1997 Rules of Civil Procedure. On October 9, 1997, the trial court dismissed the motion and directed petitioners to pay the proper fees to cure the technical defect. On the same date, petitioners paid the subject fees. Respondents elevated the case to the Court of Appeals. Upon a review of the records, which included the proofs of payment of the docket and appeal fees, the appellate court nevertheless resolved to dismiss the appeal. ISSUE: WON the payment of docket and other lawful fees within the period for perfecting an appeal is mandatory and WON petitioners have shown sufficient reason for the relaxation of what otherwise should be a stringent application of the rule RULING: At the outset, it should be stressed that failure to pay the appellate docket and lawful fees is a serious matter affecting the court’s jurisdiction. Time and again, we have consistently held that "the payment of docket fees within the prescribed period is mandatory for the perfection of an appeal. Without such payment, the appellate court does not acquire jurisdiction over the subject matter of the action and the decision sought to be appealed from becomes final and executory." Appeal is not a right but a statutory privilege; thus, appeal must be made strictly in accordance with provisions set by law. The payment of appellate docket fee is not a mere technicality of law or procedure but an essential requirement for the perfection of an appeal.

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CIVIL PROCEDURE Notes/Case Digests – Selected Cases (4-Manresa 2008-2009) However, notwithstanding the mandatory nature of such requirement, this Court has also held that "the strict application of the jurisdictional nature of the above rule on payment of appellate docket fees may be mitigated under exceptional circumstances to better serve the interest of justice." Hence, we resolve the second issue. Has petitioners presented any sufficient or satisfactory reason for the relaxation of the rules? We note that at the time petitioners filed said notice of appeal on July 17, 1997, the Revised Rules of Civil Procedure had then very recently taken effect on July 1, 1997. Indeed, as averred by petitioners in the present case, at the time of the filing of the notice of appeal, the changes introduced by the 1997 Rules of Civil procedure were yet novel, and even judges and lawyers needed time to familiarize themselves with the rules intricacies. The trial court acknowledged this fact when it resolved to grant the appeal, and favorably considered a liberal application of the rules in the meantime. Also material is the fact that petitioners were not assisted by counsel when they filed their notice of appeal. Indeed, it appears that on August 20, 1997, petitioners’ former counsel made formal the withdrawal of appearance from this case. We also note that petitioners were not informed by the trial court that the docket fees were already due at that time. This failure of the trial court might have stemmed from the recency of the rules. Hence, fairness bids us not to take this circumstance against petitioners. (Lendl Floyd Montes ) Rule 14 - Sumons

GOMEZ v. COURT OF APPEALS, ADOLFO TROCINO AND MARIANO TROCINO GR NO. 127692, 18 March 2004

FACTS: Sometime in 1975, spouses Jesus and Caridad Trocino mortgaged 2 parcels of land to Dr. Yujuico in Cebu City. The mortgage was subsequently foreclosed. Respondent-spouses Trocino sold the lands to petitioner-spouses, who in turn redeemed the lands from the mortgagee. However, the spouses Trocino refused to deliver the titles to petitioner-spouses. Thus, spouses Gomez sued spouses Trocino for delivery of the titles. The husband Trocino died before the suit was filed, thus his children, including Adolfo Trocino and Mariano Trocino, were impleaded in the suit. Summons was served, and it was only received by Caridad Trocino in behalf of the children. The trial court rendered judgment against the spouses Trocino and their heirs. Adolfo and Mariano Trocino petitioned for the annulment of the judgment of the RTC with the CA, alleging that no jurisdiction was acquired over them. At that time, Adolfo Trocino was a resident of Ohio, USA while Mariano Trocino was a resident of Talibon, Bohol, and both were not found in Cebu City at the time summons was served. ISSUES: 1. What was the nature of the complaint, upon which the manner of the service of summons should be based? 2. Was there a valid service of summons? 3. If personal service were impossible to comply, what should have been done? RULINGS: 1. The action was an action in personam. While it is a real action because it affects title to or possession of land, it does not automatically follow that the action is one in rem. In a personal action, the plaintiff seeks the recovery of personal property, the enforcement of a contract or the recovery of damages. A real action is one affecting title to real property or for the recovery of possession, or for partition or condemnation of, or foreclosure of a mortgage on real property. An action in personam is an action against a person on the basis of his personal liability, while an action in rem is an action against the thing itself, instead of against the person. The present case is an action in personam, because it is an action against persons, on the basis of their personal liability of non-delivery of titles. Thus, personal service of summons upon the private respondents is essential in order for the court to acquire jurisdiction over their persons. 2. There was none.

In actions in personam, summons on the defendant must be served by handing a copy thereof to the defendant in person, or, if he refuses to receive it, by tendering it to him. In substituted service, it is mandated that the fact of impossibility of personal service should be explained in the proof of service. Where the defendant in an action in personam is a non-resident who does not voluntarily submit himself to the authority of the court, personal service of summons within the State is essential to acquire jurisdiction over his person. An exception was accorded in Gemperle v. Schenker wherein service of summons through the non-resident’s wife, who was a resident of the Philippines, was held valid, as the latter was his representative and attorney-in-fact in a prior civil case filed by the non-resident, and the second case was merely an offshoot of the first case. In an action in rem or quasi in rem, jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on the court provided the court acquires jurisdiction over the res, although summons must be served upon the defendant for purposes of due process. Thus, where the defendant is a non-resident and not found in the Philippines, and: 1. the action affects the personal status of the plaintiff; 2. the action relates to, or the subject matter of which is property in the Philippines in which the defendant has or claims a lien or interest; 3. the action seeks the exclusion of the defendant from any interest in the property located in the Philippines; or 4. the property of the defendant has been attached in the Philippines, summons may be served extrajudicially by: a. personal service out of the country, with leave of court; b. publication, also with leave of court; or c. any other manner the court may deem sufficient. The manner of service of summons must be distinguished between Adolfo Trocino and Mariano Trocino. Since Adolfo Trocino is a resident of a foreign country, the court cannot acquire jurisdiction over his person and validly try and decide the case against him; the action being in personam. Mariano Trocino is a resident of Bohol and not of Cebu City. Thus, summons must be served on him personally, or through substituted service, upon showing of impossibility of personal service. Such impossibility, and why efforts exerted towards personal service failed, should be explained in the proof of service. The pertinent facts and circumstances attendant to the service of summons must be stated in the proof of service or Officer’s Return. Failure to do so would invalidate all subsequent proceedings on jurisdictional grounds. 3. Inasmuch as the sheriff’s return failed to state the facts and circumstances showing the impossibility of personal service of summons upon spouses Trocino within a reasonable time, spouses Gomez should have sought the issuance of an alias summons. Under Section 5, Rule 14 of the Rules of Court, alias summons may be issued when the original summons is returned without being served on any or all of the defendants. Petitioners, however, did not do so, and they should now bear the consequences of their lack of diligence.

(Kahlil Elbanbuena )

MILLENIUM INDUSTRIAL COMMERCIAL CORPORATION, vs. JACKSON TAN G.R. No. 131724. February 28, 2000

FACTS: Millenium Corporation executed a Deed of Real Estate Mortgage in favor of respondent Jackson Tan to secure payment of petitioner's indebtedness to respondent. Subsequently, respondent filed a complaint for foreclosure of mortgage. Summons and a copy of the complaint were served upon petitioner through a certain Lynverd Cinches, described in the sheriff's return as "a Draftsman, a person of sufficient age and (discretion) working therein, he is the highest ranking officer or Officer-in-Charge of defendant's Corporation, to receive processes of the Court."

Petitioner moved for the dismissal of the complaint on the ground that there was no valid service of summons upon it, as a result of which the trial court did not acquire jurisdiction over it. Petitioner invoked Rule 14, §13 of the 1964 Rules of Court and contended that service on Lynverd Cinches, as alleged in the sheriff's return, was invalid as he is not one of the authorized persons on whom summons may be served and that, in fact, he was not even its employee.

Petitioner also sought the dismissal of the complaint against it on the ground that it had satisfied its obligation to respondent when the latter

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CIVIL PROCEDURE Notes/Case Digests – Selected Cases (4-Manresa 2008-2009) opted to be paid in shares of stock under the following stipulation in the mortgage contract (affirmative defense of payment).

ISSUES: I..WON service of summons upon a mere draftsman who is not one of those upon whom summons may be served in case of a defendant corporation as mentioned in the rules is valid. II. WON the inclusion of another affirmative relief in a motion to dismiss abandons and waives the ground of lack of jurisdiction over the person of the defendant therein also pleaded under prevailing law and jurisprudence.

HELD: Summons is the means by which the defendant in a case is notified of the existence of an action against him and, thereby, the court is conferred jurisdiction over the person of the defendant. If the defendant is corporation, Rule 14, §13 requires that service of summons be made upon the corporation’s president, manager, secretary, cashier, agent, or any of its directors.

Petitioner contends that the enumeration in Rule 14, §13 is exclusive and that service of summons upon one who is not enumerated therein is invalid. This is the general rule. However, it is settled that substantial compliance by serving summons on persons other than those mentioned in the above rule may be justified.

In Porac Trucking, Inc. v. Court of Appeals, this Court enumerated the requisites for the application of the doctrine of substantial compliance, to wit: (a) there must be actual receipt of the summons by the person served, i.e., transferring possession of the copy of the summons from the Sheriff to the person served; (b) the person served must sign a receipt or the sheriff's return; and (c) there must be actual receipt of the summons by the corporation through the person on whom the summons was actually served. The third requisite is the most important for it is through such receipt that the purpose of the rule on service of summons is attained.

In this case, there is no dispute that the first and second requisites were fulfilled. With respect to the third, the appellate court held that petitioner's filing of a motion to dismiss the foreclosure suit is proof that it received the copy of the summons and the complaint. There is, however, no direct proof of this or that Lynverd Cinches actually turned over the summons to any of the officers of the corporation. In contrast, in our cases applying the substantial compliance rule, there was direct evidence, such as the admission of the corporation's officers, of receipt of summons by the corporation through the person upon whom it was actually served. The question is whether it is allowable to merely infer actual receipt of summons by the corporation through the person on whom summons was served. We hold that it cannot be allowed. For there to be substantial compliance, actual receipt of summons by the corporation through the person served must be shown. Where a corporation only learns of the service of summons and the filing of the complaint against it through some person or means other than the person actually served, the service of summons becomes meaningless. This is particularly true in the present case where there is serious doubt if Lynverd Cinches, the person on whom service of summons was effected, is in fact an employee of the corporation. Except for the sheriff's return, there is nothing to show that Lynverd Cinches was really a draftsman employed by the corporation. M

Second. We now turn to the issue of jurisdiction by estoppel. Both the trial court and the CA held that by raising the affirmative defense of payment and by praying for other reliefs in its Motion to Dismiss, petitioner in effect waived its objection to the trial court's jurisdiction over it. We think this is error.

Our decision in La Naval Drug Corporation v. Court of Appeals settled this question. The rule prior to La Naval was that if a defendant, in a motion to dismiss, alleges grounds for dismissing the action other than lack of jurisdiction, he would be deemed to have submitted himself to the jurisdiction of the court. This rule no longer holds true. Noting that the doctrine of estoppel by jurisdiction must be unequivocal and intentional, we ruled in La Naval: Jurisdiction over the person must be seasonably raised, i.e., that it is pleaded in a motion to dismiss or by way of an affirmative defense. Voluntary appearance shall be deemed a waiver of this defense. The assertion, however, of affirmative defenses shall not be construed as an estoppel or as a waiver of such defense. (Karla Deles )

Rule 15 - Motions

NORRIS v. Judge PARENTELA, JR. GR NO. 143216, 27 February 2003

FACTS: On April 4, 1977, private respondents purchased a lot from the government. However, through fraud, spouses Kalugdan had the title over the lot cancelled, and a new title was issued in their name. They then sold the lot to petitioner Norris. On August 27, 1997, private respondents sued for the annulment/cancellation of titles and damages with the RTC against Norris. Summons was served upon Norris through substituted service. Norris failed to answer, and RTC declared her in default and decided the case against her. On April 30, 1999, Norris, assisted by a neophyte lawyer, filed a petition for relief from judgment. However, this petition was not certified against forum shopping. RTC dismissed the petition. Norris moved for reconsideration. However, this motion was only addressed to the clerk of court and not to all parties. The motion was denied by RTC. On November 8, 1999, Norris filed a petition for certiorari with the CA under Rule 65. However, petitioner did not attach a certified true copy of the orders appealed from, nor did it show the material dates of the receipt of the said orders. Thus, CA dismissed the petition and the subsequent motion to reconsider. ISSUES: 1. Was the petition for relief from judgment proper? 2. Was the motion to reconsider the RTC decision proper? 3. Was the petition for certiorari proper? 4. What is the effect of these failures to comply with the procedural requirements? RULINGS: 1. No. SC Circular 04-94 requires that complaints and other initiatory pleadings in all courts and agencies other than the Supreme Court and the Court of Appeals must be accompanied by a certification against forum shopping. Norris’ petition is one of the said pleadings because it is a new petition where a party seeks relief based on grounds different from those in the original case, namely, fraud, accident, mistake or excusable negligence. 2. No. Section 5 of Rule 15 of the Rules of Court clearly provides that notice of hearing shall be addressed to all parties concerned. Notice addressed to the clerk of court and not to the parties does not suffice as notice to all. A motion that does not contain a notice of hearing to the adverse party is nothing but a mere scrap of paper and the clerk of court does not have the duty to accept it, much less to bring it to the attention of the presiding judge. 3. No. The certified true copy of the orders subject of the appeal must be attached to the petition for certiorari under Rule 65. The failure to show the material dates when Norris received the copy of the said orders prevented the Court of Appeals from determining whether the petition was filed on time or not. 4. The failure to comply with these requirements was fatal the case of Norris. While in certain instances, the Court allows a relaxation in the application of the rules, it never intended to forge a weapon for erring litigants to violate the rules with impunity. While it is true that litigation is not a game of technicalities, it is equally true that every case must be prosecuted in accordance with the prescribed procedure to insure an orderly and speedy administration of justice.

(Kahlil Elbanbuena )

ALVAREZ v. Judge DIAZ AM No. MTJ-00-1283, 3 March 2004

FACTS: Spouses Garcia sued petitioner Alvarez for forcible entry before the MTC of Quezon City. MTC Judge Diaz decided against Alvarez and ordered him and his co-defendants to vacate the premises and pay damages to spouses Garcia. Plaintiff spouses then moved to execute the decision of the MTC because there was no perfected appeal nor payment of the supersedeas bond to stay the decision. The motion was worded as follows: The Clerk of Court MTC Branch 37 Quezon City Kindly include this motion in your calendar for February 3, 1998at 8:30 in the morning during which the matter and parties may be heard. Sgd. C.A.L.

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CIVIL PROCEDURE Notes/Case Digests – Selected Cases (4-Manresa 2008-2009) Atty. Leaño, counsel for plaintiff spouses, personally delivered the motion for execution to the counsel of Alvarez. The court granted the motion. ISSUE: Should the judge have acted upon the motion for execution? RULING: No. Even if there was no perfected appeal nor payment of the supersedeas bond, respondent Judge should not have granted plaintiff’s Motion for Execution because it was fatally defective. Sec. 5, Rule 15 of the Rules of Court provides that the notice of hearing, to be stated in the motion, shall be addressed to all parties concerned and shall specify the time and date of the hearing which must not be later than 10 days after the filing of the motion. It is well-settled that any motion with a notice of hearing that is not addressed to all parties is a mere scrap of paper which should not be accepted for filing and, if filed, is not entitled to judicial cognizance. If personal service of the motion was made upon Alvarez’ counsel, then proof of service thereof consisting of any of the following should have been presented to the court, together with the Motion for Execution: Section 13. Proof of service. – xxx [1] a written admission of the party served, [2] the official return of the server, or [3] the affidavit of the party serving containing a full statement of the date, place and manner of service xxx. None of the above was presented. Thus, in accordance with Section 6, Rule 15 of the Rules of Court which mandates that “no written motion set for hearing shall be acted upon by the court without proof of service thereof,” the motion for execution should not have been acted upon by Judge Diaz. (Kahlil Elbanbuena )

BACELONIA, et al v. COURT OF APPEALS, and SPOUSES BOLOS, et al GR NO. 143440, 11 February 2003

FACTS: Petitioners filed a motion to be dropped as defendants from the civil case involving quasi-delicts, as their other co-defendants have admitted responsibility to the accident. On January 10, 2000, the trial court denied the motion and proceeded to schedule the reception of evidence. On January 31, 2000, the petitioners filed a motion for reconsideration of the trial court’s order denying their motion and set the date of hearing thereof on February 15, 2000 at 8:30 am. The trial court denied the motion to reconsider. Petitioners elevated the denial before the CA. The CA affirmed the trial court’s decision. ISSUE: Was the denial by the trial court of the motion for reconsideration, proper? RULING: Yes. Section 5 of Rule 15 of the Rules of Court provides that the notice of hearing shall be addressed to all parties concerned, and shall specify the time and date of the hearing which must not be later than 10 days after the filing of the motion. However, the date of hearing was scheduled beyond the period, or later than February 10, 2000. Significantly, the above provision uses the mandatory term, “must” in fixing the period within which the motion shall be scheduled for hearing. A motion that fails to religiously comply with the mandatory provision of Rule 15, Section 5 is pro forma and presents no question which merits the attention and consideration of the court.

(Kahlil Elbanbuena)

JEHAN SHIPPING CORPORATION v. NATIONAL FOOD AUTHORITY GR NO. 127692, 18 March 2004

FACTS: The trial court decided in favor of Petitioner and against Respondent in a civil case for the collection of a sum of money. On October 2, 2001, Petitioner filed a motion for execution of judgment. On October 16, 2001, Respondent moved to reconsider the decision. It filed a Supplemental Motion for Reconsideration on November 12, 2001. On November 9, 2001, the trial court held in abeyance the resolution on the Motion for Execution Pending Appeal pending the motion for reconsideration by respondent. On November 15, 2001, Petitioner opposed respondent’s motion for reconsideration.

On December 7, 2001, a hearing was conducted on the Motion for Reconsideration and the Supplemental Motion for Reconsideration. On January 8, 2002, trial court denied the motions, on the ground that the motion for reconsideration did not contain a notice of hearing. Respondent elevated the denial before the CA. CA reversed the decision of the trial court, holding that the requirement on notice of hearing has been substantially met. ISSUES: 1. Was the motion for reconsideration proper? 2. Did the petitioner have the opportunity to be heard? RULINGS: 1. Yes. Even though respondent failed to include a notice of hearing in its Motion for Reconsideration filed on the very last day of its appeal period, petitioner was able to oppose the issues raised in the Motion for Reconsideration. As a rule, a motion required to be heard and the notice of the hearing thereof shall be served in such a manner as to ensure its receipt by the other party at least 3 days before the date of hearing unless the court for good cause sets the hearing on shorter notice. The three-day notice requirement is not intended for the benefit of the movant but to avoid surprises that may be sprung upon the adverse party, who must be given time to study and meet the arguments in the motion before a resolution by the court. The test is the presence of the opportunity to be heard, as well as to have time to study the motion and meaningfully oppose or controvert the grounds upon which it is based. 2. Yes. It appears that the trial court gave petitioner ten days within which to comment on respondent’s Motion for Reconsideration. Petitioner was able to point out not only that the Motion was defective for not containing a notice of hearing, but also to ventilate its substantial arguments against the merits of the Motion and of the Supplemental Motion for Reconsideration. Thus, under the circumstances of this case, the purpose of a notice of hearing was served. (Kahlil Elbanbuena ) Rule 16 – Motion to Dismiss

FRANKLIN M. DRILON, AURELIO C. TRAMPE, FERDINAND R. ABESAMIS and EULOGIO MANANQUIL, petitioners, vs.

COURT OF APPEALS, HON. ERIBERTO U. ROSARIO, JR., in his

capacity as Presiding Judge of Branch 66, Regional Trial Court of Makati and JUAN PONCE ENRILE, respondents.

G.R. No. 106922 April 20, 2001 FACTS: After the unsuccessful December 1989 coup d’ etat, the DOJ headed by Franklin Drilon, requested for investigation of Juan Ponce Enrile for his alleged participation in the said coup. The Prosecutors issued a subpoena to Enrile with an order to submit his counter-affidavit to the letter-complaint. Instead of filing his counter-affidavit, Enrile filed a Petition for Summary Dismissal of the charge against him. On February 27, 1990, the Team of Prosecutors filed before the Regional Trial Court of Quezon City on Information charging private respondent with the complex crime of rebellion with murder and frustrated murder. Enrile then filed a complaint accusing the petitioners of bad faith in filing the information for rebellion complexed with murder and frustrated murder. On October 9, 1990, Drilon’s group filed a Motion to Dismiss for failure of the Complaint to state a cause of action. They claimed that there was no allegation of any actionable wrong constituting a violation of any of the legal rights of private respondent. On October 8, 1991, respondent trial court issued an Order denying the Motion to Dismiss and requiring petitioners to file their answer and to present evidence in support of their defenses in a full-blown trial inasmuch as the defense of good faith and immunity from suit does not appear to be indubitable. Drilon’s motion for reconsideration was likewise denied. Hence this petition. Going now to the crux of the petition, Drilon’s group contend that the complaint sets forth no cause of action against them. They allege good faith, regularity in the performance of official duties and lack of ultimate facts constituting an actionable wrong. On the other hand, Enrile argues that a cause of action has been sufficiently pleaded and that the defenses of good faith and performance of official duties are best disposed in a judicial hearing.

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CIVIL PROCEDURE Notes/Case Digests – Selected Cases (4-Manresa 2008-2009) ISSUE: The main question in the instant petition is whether the allegations in the complaint sufficiently plead a cause of action to hold Drilon’s group liable for damages. HELD: The petition of Drilon’s group is granted. Lack of cause of action, as a ground for a motion to dismiss…must appear on the face of the complaint itself, meaning that it must be determined from the allegations of the complaint and from none other. The infirmity of the complaint in this regard is only too obvious to have escaped respondent judge's attention. Paragraph 14 of the complaint which states: xxx xxx xxx 14. The malicious prosecution, nay persecution, of plaintiff for a non-existent crime had severely injured and besmirched plaintiff's name and reputation and forever stigmatized his stature as a public figure, thereby causing him extreme physical suffering, serious anxiety, mental anguish, moral shock and social humiliation." is a mere conclusion of law and is not an averment or allegation of ultimate facts. It does not, therefore, aid in any wise the complaint in setting forth a valid cause of action against the petitioners. However, we hold that the said allegations still fail to maintain a cause of action against Drilon’s group. To reiterate, a cause of action exists if the following elements are present: (1) a right in favor of the plaintiff by whatever means and under whatever law it arises or is created; (2) an obligation on the part of the named defendant to respect or not to violate such right; and (3) an act or omission on the part of such defendant violative of the right of the plaintiff or constituting a breach of the obligation of defendant to the plaintiff for which the latter may maintain an action for recovery of damages. 29 In the case at bar, we fail to see any right of the Enrile supposedly violated by the petitioners. Nowhere in the statute books is a prospective accused given the right to be notified beforehand of the filing of an information against him. Likewise, the withdrawal of the information and the subsequent re-filing of the same do not constitute an actionable wrong inasmuch as the filing or re-filing of an information lies within the discretion of the prosecutor who must act independently of the affected parties. The remedy of a party whenever the complaint does not allege a cause of action is to set up this defense in a motion to dismiss or in the answer. A motion to dismiss on the ground of failure to state a cause of action in the complaint hypothetically admits the truth of the facts alleged therein. However, the hypothetical admission is limited to the "relevant and material facts well pleaded in the complaint and inferences fairly deductible therefrom. The admission does not extend to conclusion or interpretations of law; nor does it cover allegations of fact the falsity of which is subject to judicial notice." Private respondent claims that an appeal or an original action for certiorari is not the proper remedy for a defendant whose motion to dismiss has been denied by the trial court for the reason that the order does not terminate the proceedings, nor finally dispose of the contentions of the parties. In its decision affirming the trial court's denial of the motion to dismiss, the appellate court sustained this contention. However, as correctly pointed out by the petitioners, the rule admits of an exception. Thus, where the denial of the motion to dismiss by the trial court was tainted with grave abuse of discretion amounting to lack or excess of jurisdiction, as in the case at bar, the aggrieved party may assail the order of denial on certiorari. A wide breadth of discretion is granted in certiorari proceedings in the interest of substantial justice and to prevent a substantial wrong. In the Drilon case, we also held that the denial by the trial court of the motion to dismiss of herein petitioners based on the same grounds as in the instant petition constituted grave abuse of discretion for the reason that "this (private respondent's baseless action) would unjustly compel the petitioners to needlessly go through a protracted trial and thereby unduly burden the court with one more futile and inconsequential case." 32 The appellate court therefore erred in not ruling that the trial court committed a grave abuse of discretion when the latter refused to dismiss the case as against herein petitioners, notwithstanding the obvious insufficiency of the complaint against them.

(Techie Silva )

FIDEL DABUCO, etc. petitioners, vs. COURT OF APPEALS AND GABI MULTI PURPOSE

COOPERATIVE, REPRESENTED BY MARIA QUISUMBING ALVAREZ AND COL. SOLOMON DALID, RET., respondents.

G.R. No. 133775 January 20, 2000 FACTS: The Lazarrabal family were the registered owners of the properties, subject matter of this case. In 1991, on different occasions, the subject properties were sold to the Ruben Baculi, Editha Belocura, Lira Puno, Rafael Lapuz, Ladrioro Montealto, Joel Masecampo, Delsa N. Manay, Ilderim Castañares, Maria Theresa Puno, [and] Jill Mendoza. On June 27, 1994, GABI Multi-Purpose Cooperative, a registered non-stock, non-profit cooperative filed a civil complaint against DABUCO, et al. who were found residing and/or tilling the subject properties. The trial court issued a TRO enjoining Dabuco, et al. to desist from further development of GABI’s properties. The trial court then lifted the TRO upon failure of GABI to prove its title over the properties. Dabuco et al. filed their answer alleging that GABI had no personality to sue since they do not appear to be buyer of the properties neither were the properties titled in its name. Dabuco filed a Motion to Dismiss on the ground of lack of cause of action, GABI has no personality to sue and lack of jurisdiction. The trial court dismissed the case. GABI appealed to the CA and the decision was reversed. The success of this petition rests on the validity of the dismissal by the trial court. Petitioners assert that there was sufficient reason to dismiss the action below on the ground that GABI had no cause of action against petitioners. They also aver in the alternative that the Complaint by GABI was properly dismissed on the ground that it failed to state a cause of action. As a preliminary matter, we wish to stress the distinction between the two grounds for dismissal of an action: failure to state a cause of action, on the one hand, and lack of cause of action, on the other hand. The former refers to the insufficiency of allegation in the pleading, the latter to the insufficiency of factual basis for the action. Failure to state a cause may be raised in a Motion to Dismiss under Rule 16, while lack of cause may be raised any time. Dismissal for failure to state a cause can be made at the earliest stages of an action. Dismissal for lack of cause is usually made after questions of fact have been resolved on the basis of stipulations, admissions or evidence presented. ISSUE: Whether or not the dismissal of the trial court on the ground of lack of cause of action was proper. HELD: The dismissal by the trial court was not proper. We note that the issue of sufficiency of GABI's cause of action does not appear to have been passed upon by the appellate court in its assailed decision. It appears that the trial court dismissed the case on the ground that GABI was not the owner of the lands or one entitled to the possession thereof, and thus had no cause of action. In dismissal for lack of cause of action, the court in effect declared that plaintiff is not entitled to a favorable judgment inasmuch as one or more elements of his cause of action do not exist in fact. Because questions of fact are involved, courts hesitate to declare a plaintiff as lacking in cause of action. Such declaration is postponed until the insufficiency of cause is apparent from a preponderance of evidence. Usually, this is done only after the parties have been given the opportunity to present all relevant evidence on such questions of fact. We do not here rule on whether GABI has a cause of action against petitioners. What we are saying is that the trial court's ruling, to the effect that GABI had no title to the lands and thus had no cause of action, was premature. Indeed, hearings were conducted. And the view of the Court of Appeals was that such hearings were sufficient. The Court disagrees with the appellate court's ruling. The hearing of July 27, 1994 was on the propriety of lifting the restraining order. At such preliminary hearing, the trial court required GABI to produce Certificates of Title to the lands in its name. GABI admitted that it did not have such Certificates, only Deeds of Sale from the registered owners. Anent petitioners' thesis that dismissal of the complaint by the trial court was proper of failure to state a cause of action, we, likewise, find no valid basis to sustain the same.

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CIVIL PROCEDURE Notes/Case Digests – Selected Cases (4-Manresa 2008-2009) Dismissal of a Complaint for failure to state a cause of action is provided for by the Rules of Court. In dismissal for failure to state a cause, the inquiry is into the sufficiency, not the veracity, of the material allegations. The test is whether the material allegations, assuming these to be true, state ultimate facts which constitute plaintiff's cause of action, such that plaintiff is entitled to a favorable judgment as a matter of law. The general rule is that inquiry is confined to the four corners of the complaint, and no other. This general rule was applied by the Court of Appeals. Said court stated: It is a well-settled rule that in determining the sufficiency of the cause of action, ONLY the facts alleged in the complaint and no others, should be considered. In determining the existence of a cause of action, only the statements in the complaint may properly be considered. If the complaint furnish sufficient basis by which the complaint may be maintained, the same should not be dismissed regardless of the defenses that may be assessed [ sic ] by defendants-appellees. There are well-recognized exceptions to the rule that the allegations are hypothetically admitted as true and inquiry is confined to the face of the complaint. There is no hypothetical admission of the veracity of allegations if their falsity is subject to judicial notice, or if such allegations are legally impossible, or if these refer to facts which are inadmissible in evidence, or if by the record or document included in the pleading these allegations appear unfounded. Also, inquiry is not confined to the complaint if there is evidence which has been presented to the court by stipulation of the parties, or in the course of hearings related to the case. Moreover, GABI did not have sufficient chance to prove its allegation of ownership. Thus, the conclusion that GABI's allegation of ownership is false and that its complaint stated no cause of action, appears to be without basis. In sum, as appears from the available records, the Court of Appeals was correct in ruling that the dismissal by the trial court of GABI's complaint was incorrect. The case should, therefore, proceed to trial where the parties may adduce evidence to support their claims and defenses. (Techie Silva ) TEODORA A. RIOFERIO, ET AL. vs. COURT OF APPEALS, ET AL. FACTS: After Alfonso Orfinada’s death, his legitimate family discovered that the Petitioner (the paramour and her children) executed an Extrajudicial Settlement of Estate of a Deceased Person with Quitclaim involving the properties of the estate of the decedent located in Dagupan City and that accordingly, the Registry of Deeds issued Certificates of Titles in their favor. The Respondents also found out that the Petitioners were able to obtain a loan from the Rural Bank by executing a Real Estate Mortgage over the properties subject of the extra-judicial settlement. Hence, the Respondents filed a Complaint for the Annulment/Rescission of Extra Judicial Settlement of Estate of a Deceased Person with Quitclaim, Real Estate Mortgage and Cancellation of Transfer Certificate of Titles with Damages against petitioners, the Rural Bank of Mangaldan, Inc. and the Register of Deeds. The Petitioners filed their Answer, raising among others the affirmative defense that respondents are not the real parties-in-interest but rather the Estate of Alfonso in view of the pendency of the administration proceedings. They filed a Motion to Set Affirmative Defenses for Hearing on the aforesaid ground, which the lower court denied. ISSUE: Whether or not the lower court erred in denying the Petitioners’ motion to set the case for preliminary hearing on their affirmative defense. HELD: No. It must be stressed that the holding of a preliminary hearing on an affirmative defense lies in the discretion of the court. This is clear from the Rules of Court, thus: SEC. 5. Pleadings grounds as affirmative defenses.- Any of the grounds for dismissal provided for in this rule, except improper venue, may be pleaded as an affirmative defense, and a preliminary hearing may be had thereon as if a motion to dismiss had been filed.1

1 Rule 16 of the Rules of Court. It is Section 6, Rule 16 of the 1997 Rules of Civil Procedure which reads:

Certainly, the incorporation of the word "may" in the provision is clearly indicative of the optional character of the preliminary hearing. The word denotes discretion and cannot be construed as having a mandatory effect.23 Subsequently, the electivity of the proceeding was firmed up beyond cavil by the 1997 Rules of Civil Procedure with the inclusion of the phrase "in the discretion of the Court", apart from the retention of the word "may" in Section 6, in Rule 16 thereof. Thus, no blame of abuse of discretion can be laid on the lower court’s doorstep for not hearing petitioners’ affirmative defense.

(Sahara Alia Silongan ) TEODORA A. RIOFERIO, VERONICA O. EVANGELISTA assisted by her husband ZALDY EVANGELISTA, ALBERTO ORFINADA,

and ROWENA O. UNGOS, assisted by her husband BEDA UNGOS, petitioners, vs. COURT OF APPEALS, ESPERANZA P. ORFINADA, LOURDES P. ORFINADA, ALFONSO ORFINADA,

NANCY P. ORFINADA, ALFONSO JAMES P. ORFINADA, CHRISTOPHER P. ORFINADA and ANGELO P. ORFINADA,

respondents. [G.R. No. 129008. January 13, 2004]

FACTS: On May 13, 1995, Alfonso P. Orfinada, Jr. died without a will but left a widow, children and a paramour with children too. The first family discovered that the Paramour Teodora executed an Extrajudicial Settlement of Estate of a Deceased Person with Quitclaim involving the properties of the estate of the decedent located in Dagupan City and executing a Real Estate Mortgage over the properties subject of the extra-judicial settlement. On December 1, 1995, respondent Alfonso “Clyde” P. Orfinada III filed a Petition for Letters of Administration docketed as S.P. Case No. 5118 before the Regional Trial Court of Angeles City, praying that letters of administration encompassing the estate of Alfonso P. Orfinada, Jr. be issued to him.[8] On February 5, 1996, petitioners filed their Answer to the aforesaid complaint interposing the defense that the property subject of the contested deed of extra-judicial settlement pertained to the properties originally belonging to the parents of Teodora Riofero[10] and that the titles thereof were delivered to her as an advance inheritance but the decedent had managed to register them in his name.[11] Petitioners also raised the affirmative defense that respondents are not the real parties-in-interest but rather the Estate of Alfonso O. Orfinada, Jr. in view of the pendency of the administration proceedings.[12] On April 29, 1996, petitioners filed a Motion to Set Affirmative Defenses for Hearing[13] on the aforesaid ground. The lower court denied the motion in its Order dated June 27, 1996, on the ground that respondents, as heirs, are the real parties-in-interest especially in the absence of an administrator who is yet to be appointed in S.P. Case No. 5118. Petitioners moved for its reconsideration but the motion was likewise denied. This prompted petitioners to file before the Court of Appeals their Petition for Certiorari under Rule 65 of the Rules of Court docketed as CA G.R. S.P. No. 42053.[17] Petitioners averred that the RTC committed grave abuse of discretion in issuing the assailed order which denied the dismissal of the case on the ground that the proper party to file the complaint for the annulment of the extrajudicial settlement of the estate of the deceased is the estate of the decedent and not the respondents. The Court of Appeals rendered the assailed Decision dated January 31, 1997, stating that it discerned no grave abuse of discretion amounting to lack or excess of jurisdiction by the public respondent judge when he denied petitioners’ motion to set affirmative defenses for hearing in view of its discretionary nature. A Motion for Reconsideration was filed by petitioners but it was denied. Hence, the petition before this Court.

Section 6. Pleading grounds as affirmative defenses. If no motion to dismiss has been filed, any of the grounds for dismissal provided for in this Rule may be pleaded as an affirmative defense in the answer and, in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss had been filed. The dismissal of the complaint under this section shall be without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer. (Emphasis supplied)

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CIVIL PROCEDURE Notes/Case Digests – Selected Cases (4-Manresa 2008-2009) ISSUE: Whether the heirs have legal standing to prosecute the rights belonging to the deceased subsequent to the commencement of the administration proceedings. HELD: Yes they have legal standing. Petitioners vehemently fault the lower court for denying their motion to set the case for preliminary hearing on their affirmative defense that the proper party to bring the action is the estate of the decedent and not the respondents. It must be stressed that the holding of a preliminary hearing on an affirmative defense lies in the discretion of the court. This is clear from the Rules of Court, thus: SEC. 5. Pleadings grounds as affirmative defenses.- Any of the grounds for dismissal provided for in this rule, except improper venue, may be pleaded as an affirmative defense, and a preliminary hearing may be had thereon as if a motion to dismiss had been filed.[22] (Emphasis supplied.) Certainly, the incorporation of the word “may” in the provision is clearly indicative of the optional character of the preliminary hearing. The word denotes discretion and cannot be construed as having a mandatory effect.[23] Subsequently, the electivity of the proceeding was firmed up beyond cavil by the 1997 Rules of Civil Procedure with the inclusion of the phrase “in the discretion of the Court”, apart from the retention of the word “may” in Section 6,[24] in Rule 16 thereof. Just as no blame of abuse of discretion can be laid on the lower court’s doorstep for not hearing petitioners’ affirmative defense, it cannot likewise be faulted for recognizing the legal standing of the respondents as heirs to bring the suit. Pending the filing of administration proceedings, the heirs without doubt have legal personality to bring suit in behalf of the estate of the decedent in accordance with the provision of Article 777 of the New Civil Code “that (t)he rights to succession are transmitted from the moment of the death of the decedent.” The provision in turn is the foundation of the principle that the property, rights and obligations to the extent and value of the inheritance of a person are transmitted through his death to another or others by his will or by operation of law.[25] Even if administration proceedings have already been commenced, the heirs may still bring the suit if an administrator has not yet been appointed. This is the proper modality despite the total lack of advertence to the heirs in the rules on party representation, namely Section 3, Rule 3[26] and Section 2, Rule 87[27] of the Rules of Court. In fact, in the case of Gochan v. Young,[28] this Court recognized the legal standing of the heirs to represent the rights and properties of the decedent under administration pending the appointment of an administrator. Thus: The above-quoted rules,[29] while permitting an executor or administrator to represent or to bring suits on behalf of the deceased, do not prohibit the heirs from representing the deceased. These rules are easily applicable to cases in which an administrator has already been appointed. But no rule categorically addresses the situation in which special proceedings for the settlement of an estate have already been instituted, yet no administrator has been appointed. In such instances, the heirs cannot be expected to wait for the appointment of an administrator; then wait further to see if the administrator appointed would care enough to file a suit to protect the rights and the interests of the deceased; and in the meantime do nothing while the rights and the properties of the decedent are violated or dissipated. Even if there is an appointed administrator, jurisprudence recognizes two exceptions, viz: (1) if the executor or administrator is unwilling or refuses to bring suit;[30] and (2) when the administrator is alleged to have participated in the act complained of[31] and he is made a party defendant.[32] Evidently, the necessity for the heirs to seek judicial relief to recover property of the estate is as compelling when there is no appointed administrator, if not more, as where there is an appointed administrator but he is either disinclined to bring suit or is one of the guilty parties himself. All told, therefore, the rule that the heirs have no legal standing to sue for the recovery of property of the estate during the pendency of administration proceedings has three exceptions, the third being when there is no appointed administrator such as in this case. As the appellate court did not commit an error of law in upholding the order of the lower court, recourse to this Court is not warranted. (Techie Silva )

MA. CARMINIA C. ROXAS v. HON. COURT OF APPEALS and JOSE ANTONIO F. ROXAS

G.R. No. 139337 August 15, 2001 (issue: dismiss order not final) FACTS: Carminia Roxas filed an action for declaration of nullity of marriage on the ground of psychological incapacity of her husband, Jose Antonio F. Roxas with application for support pendent lite for their four(4) minor children. The case was with the Regional Trial Court of Parañaque City presided by Judge Rolando C. How. But the petitioner, soon thereafter, filed in the said RTC Branch 257 a Notice of Dismissal dated November 20, 1997 without prejudice, pursuant to the provision of Section 1, Rule 17, of the 1997 Rules of Civil Procedure, considering that summons has not yet been served and no responsive pleading has yet been filed. The same complaint, now docketed as Civil Case No. 97-0608, was re-filed on November 25, 1997. It was raffled in due course to Branch 260 of the Regional Trial Court of Parañaque City presided by Judge Helen Bautista-Ricafort. Judge Bautista-Ricafort received evidence on the application for support pendente lite . The private respondent and her counsel, Atty. Alberto Diaz, participated in that proceedings by conducting an extensive cross-examination of the petitioner. The trial court then issued its Order dated May 13, 1998 declaring the proceedings on the application for support pendente lite terminated and deemed submitted for resolution. Jose Roxas refused to comply with the Judge’s order for support. He hired a new lawyer and field a temporary stay execution of the orders. The appellate court nullified the Orders and the proceedings of the trial court for the reason that the certificate of non-forum shopping of the petitioner did not mention the prior filing of Civil Case No. 97-0523 before the sala of Judge How and the dismissal thereof without prejudice. The decision of the appellate court elaborated the reasons for the granting of the petition, to wit: xxx xxx xxx While a complaint may be dismissed by the plaintiff by filing a notice of dismissal at any time before service of the answer (Sec. 1, Rule 17), there is however a need to state the fact of prior filing and dismissal thereof in the certification on non-forum shopping, in the event the complaint is refiled, as in this case. This must be so in order to prevent the plaintiff or principal party from invoking Section 1 of Rule 17 in the hope that, if and when refiled, the complaint will be raffled to a more sympathetic judge. The CA then ordered the annulment case should be returned to Branch 257 of the RTC of Parañaque City, to which it was originally raffled. ISSUE: In other words, if a case is dismissed without prejudice upon the filing by the plaintiff of a notice of dismissal pursuant to Section 1 of Rule 17, before the service of the answer or responsive pleading, would the subsequent re-filing of the case by the same party require that the certificate of non-forum shopping state that a case involving the same issues and parties was filed and dismissed without prejudice beforehand? Would the omission of such a statement in the certificate of non-forum shopping render null and void the proceedings and orders issued by the trial court in the re-filed case? HELD: It is our considered view and we hold that the proceedings and orders issued by Judge Bautista-Ricafort in the application for support pendente lite (and the main complaint for annulment of marriage) in the re-filed case, that is, in Civil Case No. 97-0608 were not rendered null and void by the omission of a statement in the certificate of non-forum shopping regarding the prior filing and dismissal without prejudice of Civil Case No. 97-0523 which involves the same parties and issues. Since a party resorts to forum shopping in order to increase his chances of obtaining a favorable decision or action, it has been held that a party cannot be said to have sought to improve his chances of obtaining a favorable decision or action where no unfavorable decision has ever been rendered against him in any of the cases he has brought before the courts. Forum shopping exists where the elements of litis pendencia are present, and where a final judgment in one case will amount to res judicata in the other. For the principle of res judicata to apply, the following must be present: (1) a decision on the merits; (2) by a court of competent jurisdiction; (3) the decision is

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CIVIL PROCEDURE Notes/Case Digests – Selected Cases (4-Manresa 2008-2009) final; and (4) the two actions involve identical parties, subject matter and causes of action. In the case at bar, there was no adverse decision against the petitioner in Civil Case No. 97-0523 which was the first case filed and raffled to the sala (Branch 257) of Judge How. The dismissal without prejudice of the complaint in Civil Case No. 97-0523 at the instance of the petitioner was pursuant to Section 1, Rule 17 of the 1997 Rules of Civil Procedure 15 considering that it was done before service of answer or any responsive pleading. The dismissal does not amount to litis pendencia nor to res judicata . There is no litis pendencia since the first case before Judge How was dismissed or withdrawn by the plaintiff (herein petitioner), without prejudice, upon her filing of a notice of dismissal, pursuant to Section 1, Rule 17 of the 1997 Rules of Civil Procedure. To use the wording of that rule, Judge How’s order is one merely "confirming the dismissal" of the complaint by the plaintiff (herein petitioner). Neither is there res judicata for the reason that the order of dismissal was not a decision on the merits but a dismissal "without prejudice". Private respondent is also estopped in questioning the proceedings and orders of Judge Bautista-Ricafort. He tacitly acknowledged the validity of the proceedings and the orders issued by the said trial judge by participating actively in the hearing on the application for support pendente lite. For a party to be adjudged guilty of forum shopping in the trial courts, a motion to dismiss on the ground of either litis pendencia or res judicata must be filed before the proper trial court and a hearing conducted thereon in accordance with Section 5, Rule 7 of the 1997 Rules of Civil Procedure. The same ground cannot be raised in a petition for certiorari before the appellate court while the main action in the trial court is still pending for the reason that such ground for a motion to dismiss can be raised before the trial court any time during the proceedings and is not barred by the filing of the answer to the complaint. The petition for certiorari in the case at bar on the ground of alleged forum shopping in the trial court is premature for the reason that there is an adequate and speedy remedy available in the ordinary course of law to private respondent, i.e ., a motion to dismiss or a motion for reconsideration on the ground of either litis pendencia or res judicata before the trial court. But private respondent did not file such a motion based on either of said grounds. And where the ground is short of res judicata or litis pendencia , as in the case at bar, the Court of Appeals acted with grave abuse of discretion amounting to excess of jurisdiction when it granted the petition for certiorari filed by herein private respondent. The trial court should have been given an opportunity to rule on the matter of alleged forum shopping in consonance with the hierarchy of courts. (Techie Silva ) Rule 18 – Pre-Trial

TIU vs. MIDDLETON July 19, 1999 FACTS: The present petition arose from a Complaint for recovery of ownership and possession of real property. The court a quo sent a Notice of Pre-trial Conference, stating in part: "The parties are WARNED that witnesses whose names and addresses are not submitted at the pre-trial may not be allowed to testify at the trial." In his Pre-trial Brief, petitioner averred that he would be presenting 6 witnesses, but he did not name them. After the pre-trial conference, the court a quo issued a Pre-trial Order stating that the petitioner would present 6 witnesses and specifying the hearing dates for the said purpose. Trial ensued, and herein respondents, as plaintiffs in the case, presented their witnesses in due course. When his turn came, petitioner called Antonia Tiu as his first witness. Citing Section 6, Rule 18 of the 1997 Rules of Court, respondents objected, arguing that the witness could not be allowed to testify because petitioner had failed to name her in his Pre-trial Brief. ISSUE: Can Petitioner's Unnamed Witnesses Testify? RULING: Yes. Pre-trial is an answer to the clarion call for the speedy disposition of cases. As earlier stated, pre-trial is essential in the simplification and the speedy disposition of disputes. In light of the objectives of a pre-trial and the role of the trial court therein, it is evident that judges have the discretion to exclude witnesses and other pieces of evidence not listed in the pre-trial brief, provided the parties are given prior notice to this effect.

The Notice of Pre-trial Conference warned the parties that "witnesses whose names and addresses are not submitted at the pre-trial may not be allowed to testify at the trial." In his Pre-trial Brief, petitioner merely stated that he intended to present 6 witnesses In his Pre-trial Order, however, the trial judge did not exercise his discretion to exclude the unnamed witnesses. Rather, it simply provided that "[t]he defendant will present 6 witnesses." It made no mention at all that they would be barred from testifying unless they were named. Indeed, the court and the parties must pay attention not only to the pre-trial briefs, but also to the pre-trial order. Hence, the provision in the Pre-trial Order allowing petitioner to present 6 witnesses "shall control the subsequent course of action." Pre-trial* is an essential device for the speedy disposition of disputes. Hence, parties cannot brush it aside as a mere technicality. Where the pre-trial brief does not contain the names of witnesses and the synopses of their testimonies as required by the Rules of Court, the trial court, through its pre-trial order, may bar the witnesses from testifying. However, an order allowing the presentation of unnamed witnesses may no longer be modified during the trial without the consent of the parties affected. (Lendl Floyd Montes )

VERA vs. RIGOR AND CA (August 10, 2007) FACTS: Ernesto Rigor, respondent, filed with the Regional Trial Court a complaint for sum of money with damages against Dr. Emmanuel Vera, petitioner. Respondent alleged in his complaint that petitioner purchased from him a brand new Ultrasound Scanner, for P410,000.00. Petitioner paid P120,000.00 as downpayment, leaving a balance of P290,000.00. Despite respondent’s demand, petitioner failed to pay the same. In his answer, petitioner claimed that he received the machine on a trial basis. However, when tested, its “performance” was unsatisfactory. Moreover, the hospital where the machine was to be installed has no funds. Respondent offered a new brand of Ultrasound Scanner but it turned out to be an old model. The trial court then set the pre-trial. During the pre-trial conference, the parties failed to reach an amicable settlement, hence, the trial court terminated the pre-trial and set the case for initial hearing. However, upon motion of respondent’s counsel, the trial was reset to July 17, 1997. During the hearing on this date, the trial court, upon manifestation of petitioner’s counsel, realized that respondent failed to file a pre-trial brief. Petitioner filed a motion to dismiss the complaint raising as ground respondent’s failure to file a pre-trial brief. The trial court issued a Resolution granting the motion and dismissing the complaint. Respondent filed a motion for reconsideration but it was denied by the trial court. ISSUE: Whether or not the civil case is dismissible for failure of the respondent to file pre-trial brief? RULING: The civil case should be dismissed for failure to file pre-trial brief. Section 6, Rule 18 of the 1997 Rules of Civil Procedure, as amended, Section 5 of the same Rule, and Section 7 mandatorily requires the parties to seasonably file their briefs and failure to do so shall be cause for the dismissal of the action. While the trial judge erroneously proceeded with the trial conference, the fact remains that respondent did not file a pre-trial brief. Pursuant to Section 6, Rule 18 quoted above, such failure is a cause for dismissal of the action. We have to emphasize that pre-trial and its governing rules are not technicalities which the parties may ignore or trifle with. Obviously, since respondent did not file a pre-trial brief, it follows that the trial judge failed to conduct the pre-trial conference in accordance with Rule 18. In fact, he did not issue the required pre-trial order stating the various matters which should have been included therein. Indeed, the trial judge showed his ignorance of the Rules, specifically Rule 18. And by failing to take appropriate steps to enable the parties reach an amicable settlement, the trial judge showed his gross inefficiency. (Anthony Balagot )

VILLANUEVA vs. CA (2004)

FACTS:Plaintiff Eusebia Napisa Retuya, is the legal wife of defendant Nicolas Retuya, having been married to the latter on October 7, 1926. Out of the lawful wedlock, they begot five (5) children, namely, Natividad, Angela, Napoleon, Salome, and Roberta. Spouses Retuya resided at Tipolo, Mandaue City. During their marriage they acquired real properties and all improvements situated in Mandaue City, and

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CIVIL PROCEDURE Notes/Case Digests – Selected Cases (4-Manresa 2008-2009) Consolacion, Cebu. Also, defendant, Nicolas Retuya, is co-owner of a parcel of land situated in Mandaue City which he inherited from his parents Esteban Retuya and Balbina Solon as well as the purchasers of hereditary shares of approximately eight (8) parcels of land in Mandaue City. In 1945, defendant Nicolas Retuya no longer lived with his legitimate family and cohabited with defendant, Pacita Villanueva, wherein defendant, Procopio Villanueva, is their illegitimate son. Nicolas, then, was the only person who received the income of the above-mentioned properties. Defendant, Pacita Villanueva, from the time she started living in concubinage with Nicolas, has no occupation, she had no properties of her own from which she could derive income. In 1985, Nicolas suffered a stroke and cannot talk anymore, cannot walk anymore and they have to raise him up in order to walk. Natividad Retuya knew of the physical condition of her father because they visited him at the hospital. From the time defendant Nicolas Retuya suffered a stroke on January 27, 1985 and until the present, it is defendant Procopio Villanueva, one of Nicolas’ illegitimate children who has been receiving the income of these properties. Witness Natividad Retuya went to Procopio to negotiate because at this time their father Nicolas was already senile and has a childlike mind. She told defendant, Procopio that their father was already incapacitated and they had to talk things over and the latter replied that it was not yet the time to talk about the matter. Plaintiff, then, complained to the Barangay Captain for reconciliation/mediation but no settlement was reached, hence, the said official issued a certification to file action. Written demands were made by plaintiff, through her counsel, to the defendants, including the illegitimate family asking for settlement but no settlement was reached by the parties. The trial court rendered its Decision on 16 February 1994 in favor of Eusebia. The appellate court dismissed Pacita’s defense of prescription and laches since she failed to have the issue included in the pre-trial order after raising it in her answer with her co-petitioners. ISSUE: Whether or not Pacita’s defense of prescription and laches are tenable? RULING: The defense of prescription and laches are not tenable.

The determination of issues during the pre-trial conference bars the consideration of other questions, whether during trial or on appeal.[6] Section 1 of Rule 9 covers situations where a defense or objection is not raised in a motion to dismiss or an answer. What we have before us is the exact opposite. Here, petitioners in fact raised in their answer the defense of prescription and laches. However, despite raising the defense of prescription and laches in their answer, petitioners failed to include this defense among the issues for consideration during the trial. The non-inclusion of this defense in the pre-trial order barred its consideration during the trial. Clearly, Section 1 of Rule 9 does not apply to the present case.

Pre-trial is primarily intended to insure that the parties properly raise all issues necessary to dispose of a case.[7] The parties must disclose during pre-trial all issues they intend to raise during the trial, except those involving privileged or impeaching matters.[8] Although a pre-trial order is not meant to catalogue each issue that the parties may take up during the trial, issues not included in the pre-trial order may be considered only if they are impliedly included in the issues raised or inferable from the issues raised by necessary implication.[9]The basis of the rule is simple. Petitioners are bound by the delimitation of the issues during the pre-trial because they themselves agreed to the same.[10]

Petitioners argue that in past instances we have reviewed matters raised for the first time during appeal. True, but we have done so only by way of exception involving clearly meritorious situations.[11] This case does not fall under any of those exceptions. The fact that the case proceeded to trial, with the petitioners actively participating without raising the necessary objection, all the more requires that they be bound by the stipulations they made at the pre-trial.[12] Petitioners were well aware that they raised the defense of prescription and laches since they included it in their answer. However, for reasons of their own, they did not include this defense in the pre-trial.

Able counsels represented both parties. We see no claim that either counsel erred or was negligent. This could only mean that petitioners’ counsel chose to waive, or did not consider important, the defense of prescription and laches. Petitioners are bound by their counsel’s choice. Other than arguing that it is allowable to raise the issue for the first time on appeal, we have no explanation from petitioners why they suddenly decided to change their mind. Parties are not allowed to flip-flop. Courts have neither the time nor the resources to accommodate parties who choose to go to trial haphazardly. Moreover, it would be grossly unfair to allow petitioners the luxury of changing their mind to the detriment of private respondents at this late stage. To put it simply, since petitioners did

not raise the defense of prescription and laches during the trial, they cannot now raise this defense for the first time on appeal.

(Anthony Balagot )

Rule 22 – Computation of Time

BPI VS CA and Jimmy Go (June 28, 2006) FACTS: Petitioner, Far East Bank and Trust Company, granted a total of eight (8) loans to Noah’s Arc Merchandising (Noah’s Ark, for

brevity). Noah’s Ark is a single proprietorship owned by Mr. Albert T. Looyuko. The said loans were evidenced by identical Promissory Notes all signed by Albert T. Looyuko, private respondent Jimmy T. Go and one Wilson Go. Likewise, all loans were secured by real estate mortgage constituted over a parcel of land. Petitioner, claiming that Noah’s Ark defaulted in its obligations, extrajudicially foreclosed the mortgage. The auction sale was set on 14 April 1998 but on 8 April 1998 private respondent filed a complaint for damages with prayer [for] issuance of TRO and/or writ of preliminary injunction seeking [to] enjoin the auction sale. [I]n the Order dated 14 April 1998 a temporary restraining order was issued and in the same order the application for Preliminary Injunction was set for hearing [i]n the afternoon of the same day (Rollo, p. 142).2 In an order3 dated April 15, 1998, Judge Victorio extended the TRO for another 15 days, for a total of 20 days. Private-respondent then filed a bond as required by the order. Petitioner moved for a reconsideration of the aforementioned order which motion was denied in the Order dated 30 July 1998 on the ground that the extrajudicial foreclosure was premature as to four (4) promissory notes. After petitioner’s motion for reconsideration was denied . The Court of Appeals partially denied the petition for certiorari. ISSUE: Whether or not the TRO and writ of preliminary injunction were properly issued by the Judge? RULING: The TRO and the writ of preliminary injunction were not properly issued by the Judge. The issuance of the TRO was, on procedural grounds, irregular. Section 5, Rule 58 of the Rules of Civil Procedure provides:

Preliminary injunction not granted without notice; exception. � No preliminary injunction shall be granted without hearing and prior notice to the party or person sought to be enjoined. If it shall appear from facts shown by affidavits or by the verified application that great or irreparable injury would result to the applicant before the matter can be heard on notice, the court to which the application for preliminary injunction was made, may issue a temporary restraining order to be effective only for a period of twenty (20) days from notice to the party or person sought to be enjoined. Within the said twenty-day period, the court must order said party or person to show cause, at a specified time and place, why the injunction should not be granted, determine within the same period whether or not the preliminary injunction shall be granted, and accordingly issue the corresponding order.

Judge Victorio, in an order dated April 14, 1998, issued a TRO for five days, then, in an order dated April 15, 1998, extended it for fifteen more days, totaling twenty days. However, in the first order, Judge Victorio excluded Saturdays and Sundays; and in the latter order he added legal holidays to the exclusions. As quoted above, a TRO is effective only for a period of twenty days from notice to the party sought to be enjoined. The rule does not specify that the counting of the twenty-day period is only limited to working days or that Saturdays, Sundays and legal holidays are excluded from the twenty-day period. The law simply states twenty days from notice. Section 1, Rule 22 It is clear from the last sentence of this section that non-working days (Saturdays, Sundays and legal holidays) are excluded from the counting of the period only when the last day of the period falls on such days. The Rule does not provide for any other circumstance in which non-working days would affect the counting of a prescribed period. Hence, Judge Victorio exceeded the authority granted to lower courts, in Section 5, Rule 58 of the Rules of Court, when he excluded non-working days from the counting of the twenty-day period. (Anthony Balagot )

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CIVIL PROCEDURE Notes/Case Digests – Selected Cases (4-Manresa 2008-2009) Rule 23 – Depositions before action or pending appeal JONATHAN LANDOIL INTERNATIONAL CO., INC vs. Spouses

MANGUDADATU August 16, 2004 FACTS: A deposition upon oral examination of the petitioner’s former counsels was taken by the petitioner, which was opposed by the respondents. The Deposition was intended to prove that JLI had not received a copy of the Order denying the Omnibus Motion for New Trial. On appeal, the CAruled that petitioner could no longer avail itself of a deposition under Rule 23 of Rules of Court, since trial had already been terminated. It ruled that between the denial of a lawyer and the certification of a postmaster, the latter would prevail. ISSUE: Whether the taking of oral depositions was proper under the circumstances. HELD: The CA erred in declaring that the taking of the depositions of petitioner’s witnesses was improper. A deposition may be taken with leave of court after jurisdiction has been obtained over any defendant or over property that is the subject of the action; or, without such leave, after an answer has been served. The Rules of Court and jurisprudence, however, do not restrict a deposition to the sole function of being a mode of discovery before trial. Under certain conditions and for certain limited purposes, it may be taken even after trial has commenced and may be used without the deponent being actually called to the witness stand. In Dasmariñas Garments v. Reyes, we allowed the taking of the witnesses’ testimonies through deposition, in lieu of their actual presence at the trial. Thus, depositions may be taken at any time after the institution of any action, whenever necessary or convenient. There is no rule that limits deposition-taking only to the period of pre-trial or before it; no prohibition against the taking of depositions after pre-trial. There can be no valid objection to allowing them during the process of executing final and executory judgments, when the material issues of fact have become numerous or complicated. Depositions are allowed, provided they are taken in accordance with the provisions of the Rules of Court (that is, with leave of court if the summons have been served, without leave of court if an answer has been submitted); and provided, further, that a circumstance for their admissibility exists. Depositions may be used for the trial or for the hearing of a motion or an interlocutory proceeding, under the circumstances specified hereunder: Section 4. Use of Depositions. -- At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any one of the following provisions: xxx (c) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: xxx (2) that the witness resides at a distance more than one hundred (100) kilometers from the place of trial or hearing, or is out of the Philippines, unless it appears that his absence was procured by the party offering the deposition.xxx The present case involved a circumstance that fell under the above-cited Section 4(c)(2) of Rule 23 -- the witnesses of petitioner in Metro Manila resided beyond 100 kilometers from Sultan Kudarat, the place of hearing. Petitioner offered the depositions in support of its Motion to Quash (the Writ of Execution) and for the purpose of proving that the trial court’s Decision was not yet final. As previously explained, despite the fact that trial has already been terminated, a deposition can still be properly taken. We note, however, that the RTC did not totally disregard petitioner’s depositions. In its Resolution, the trial court considered and weighed -- against all other evidence -- that its Order denying the Motion for New Trial filed by petitioner had not been received by the latter’s counsels. Despite their depositions, petitioner failed to prove convincingly its denial of receipt. (Sahara Alia Silongan )

Rule 25 – Interrogatories to Parties

ELENA S. ONG vs. FRANCISCO V. MAZO, ET AL. June 4, 2004

FACTS: After filing her Answer in the Complaint for Damages against her, the Petitioner served written interrogatories upon respondents and filed a "Manifestation and Omnibus Motion" seeking, among other things, an order from the trial court directing respondents to answer the interrogatories. The trial court, however, denied the motion to compel respondents to answer the interrogatories upon the ground that it constituted a "fishing expedition" which would be more properly ventilated in a pre-trial conference. ISSUE: Whether or not the trial court erred in denying the motion. HELD: Yes. The SC finds that the orders disallowing petitioner’s written interrogatories are patently erroneous, hence, the resort to certiorari is warranted. This Court has long espoused the policy of encouraging the availment of the various modes or instruments of discovery as embodied in Rules 24 to 29 of the Revised Rules of Court. Thus, in Republic v. Sandiganbayan,31 it held: . . . Indeed it is the purpose and policy of the law that the parties - before the trial if not indeed even before the pre-trial - should discover or inform themselves of all the facts relevant to the action, not only those known to them individually, but also those known to their adversaries; in other words, the desideratum is that civil trials should not be carried on in the dark; and the Rules of Court make this ideal possible through the deposition-discovery mechanism set forth in Rules 24 to 29. The thrust of the Rules is to even make the availment of the modes of discovery -- depositions, interrogatories and requests for admissions -- without much court intervention since leave of court is not necessary to put into motion such modes after an answer to the complaint has been served. The rationale behind the recognition accorded the modes of discovery is that they enable a party to discover the evidence of the adverse party and thus facilitate an amicable settlement or expedite the trial of the case. Thus, to deny a party the liberty to have his written interrogatories answered by his opponent, as what the trial court did, on the premise that the interrogatories were a "fishing expedition," is to disregard the categorical pronouncement in aforementioned case of Republic vs. Sandiganbayan that the time-honored cry of “fishing expedition” can no longer provide a reason to prevent a party from inquiring into the facts underlying the opposing party’s case through the discovery procedures. (Sahara Alia Silongan ) Rule 30 - Trial

UMALI-PACO vs. QUILALA (October 15, 2002) HELD: The rules require that, where the reception of evidence is delegated to the clerk of court, he or she must also be a member of the bar. Neither agreement by parties nor their acquiescence can justify its violation. (Kahlil Elbanbuena ) Rule 31 – Consolidation or Severance

HONORIDEZ vs. MAHINAY (August 12, 2005)

FACTS: Petitioners filed a Complaint for declaration of nullity of a mortgage deed and for damages, with an application for a TRO and/or injunction to prevent the foreclosure sale of the subject parcel of land. Petitioners alleged that they mortgaged said parcel of land to Jocelyn Sorensen and that the mortgage deed imposed an unconscionable interest of 5% per month. Thereafter, Petitioners filed an Amended Complaint alleging that the same parcel of land was earlier mortgaged to Felimon Suarez but they were required to execute a deed of sale instead. They claimed that when the secured obligation had matured, Sorensen offered to help redeem the property and did pay the sum for such purpose. It was after such payment that petitioners executed the mortgage in favor of Sorensen. During the course of the proceedings, Atty. Makilito Mahinay filed a Motion to Intervene claiming that in an earlier case, he and petitioners entered into a compromise agreement wherein he was given the

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CIVIL PROCEDURE Notes/Case Digests – Selected Cases (4-Manresa 2008-2009) preferential right to buy the lot in issue in the event that petitioners decide to dispose of it. Later on, he discovered that petitioners executed a deed of sale over the same lot in favor of Suarez, thereby prompting him to file an action for specific performance. The subsequent action was decided in Mahinay’s favor, with the RTC finding that the contract between Suarez and petitioners was a sale and not an equitable mortgage, ruling that Mahinay is entitled to redeem the lot from Suarez. This decision was affirmed by the CA and became final and executory. Petitioners and Sorensen opposed the motion for intervention and then filed among others, a Motion for Consolidation claiming that the redemption is a supervening event which rendered the decision unenforceable and that the determination of whether such redemption is a supervening event is a common issue in the case a quo and in Civil Case No. CEB-16335. ISSUE: WON the trial court erred in not consolidating Civil Case No. CEB-23653 [with Civil Case No. CEB 16335]

RULING: No. Under Section 1, Rule 31 of the Rules of Court, only pending actions involving a common question of law or fact may be consolidated. Obviously, petitioners cannot make out a case for consolidation in this case since Civil Case No. CEB-16335, the case which petitioners seek to consolidate with the case a quo, has long become final and executory; as such it cannot be re-litigated in the instant proceedings without virtually impeaching the correctness of the decision in the other case. Public policy abhors such eventuality. Litigation must end and terminate sometime and somewhere, and it is essential to an effective administration of justice that once a judgment has become final the issue or cause involved therein should be laid to rest. (Lendl Floyd Montes ) Rule 32 – Trial by Commissioner ALJEM'S CORPORATION (LOGGING DIVISION) vs. COURT OF

APPEALS (March 28, 2001) FACTS: Petitioner Aljem's Corporation Logging Division (Aljem) was a joint venture entered into between petitioner's representative, Pacifico V. Dizon, Jr. and private respondent (PR) Rudy Y. Chua. Dizon served as the venture's president, while PR was its vice-president. The parties initially agreed upon a 55-45 sharing, which they later modified to 50-50. On August 11, 1992, PR sued petitioner for a sum of money and for damages. In his complaint he alleged, among other things, that according to the financial report prepared by a CPA commissioned by him, the logging operations of the joint venture earned an income of P3,659,710.07 from January to August 1990. But despite repeated demands by him for the payment of his 50% share of the income, petitioner refused to pay him his share. In its answer, petitioner alleged that PR's auditor bloated the joint venture's net operating income for the year 1990 to P3,659,710.07 and that the correct amount, as found by petitioner's accountant, was only P2,089,141.80. During the pre-trial conference of the case, the parties agreed to refer the case to a commissioner. For this reason, Leonora B. Cainglet was appointed commissioner by the trial court and ordered to conduct an audit of petitioner's accounting records. On March 26, 1993, petitioner filed a Manifestation and Motion, alleging that there were discrepancies concerning sales, depreciation, and interest between the audit report and the report of its (petitioner's) auditor. On May 27, 1993, petitioner filed its comments and objections to the commissioner's report. On December 6, 1993, the trial court issued an order confirming the commissioner's report and adopting her findings of facts and conclusions as those of the court. Petitioner filed a motion for reconsideration, contending that the commissioner did not observe the mandatory requirements of Rule 33, sections 3 and 5 of the 1964 Rules of Court relative to the conduct of hearings before the commissioner. MFR was denied, hence this petition. ISSUE: WON the audit report should not be admitted by the trial court on the ground that commissioner merely based her report on her interview of the parties and did not hold any formal hearing. HELD: Sections 3 and 5 indicate quite clearly the necessity for a formal hearing and the swearing of witnesses; otherwise, the commissioner cannot determine factual questions which arise in the course of his examination of the accounts. For this purpose, the witnesses must necessarily be sworn in and offered for cross-examination by the parties so that the truth of any question may be

determined. This would not be possible were the commissioner merely to interview the parties. Where controversial questions are involved, such as whether certain items must be allowed or disallowed, an adversary proceeding is particularly indicated. That is why the last sentence of §3 says that "The trial or hearing before him shall proceed in all respects as it would be held before the court." For the fact is that the commissioner substitutes for the judge, and whatever the judge can or cannot do, the commissioner also can or cannot do. Consequently, if a judge cannot decide a question without hearing the parties on oath or affirmation, neither can the commissioner. Since the proceedings before the commissioner were null and void because of the denial of due process to petitioner, the nullity of the proceedings can be raised at any stage of case. It was error, therefore, for the trial court to approve the commissioner's report over the objection of petitioner. (Bhing Doquilla ) Rule 34 – Judgment on the Pleadings

MENESES vs. SECRETARY (October 23, 2006)

FACTS: Petitioners were co-owners of a rice land which was distributed to farmer-beneficiaries by virtue of P.D. No. 27. Petitioners filed a complaint for determination and payment of just compensation. The farmer-beneficiaries, the Land Bank of the Philippines-Land Valuation and Landowners' Compensation III, the DAR Secretary, and the DAR all filed their respective Answers.

The RTC dismissed the complaint for lack of cause of action. Petitioners filed an MFR which was partially granted. Petitioners thereafter filed a complaint for determination and payment of just compensation with the DARAB which was dismissed on the ground that it has no jurisdiction to hear and decide valuation cases covered by P.D. No. 27. Because of the foregoing dismissal, petitioners filed with the RTC a motion to re-open and calendar case for hearing, which was granted.

Petitioners were then scheduled to present their evidence. During the hearing, the parties agreed as to the issue to be resolved "whether or not the plaintiffs are entitled to just compensation as provided for in R.A. No. 6657”. (Respondents filed a motion for judgment on the pleadings).The RTC rendered its Decision dismissing the complaint.

ISSUE: WON the CA erred in sustaining the propriety of the motion for judgment on the pleadings filed by respondents with the RTC.

RULING: Yes. Rule 34, Section 1 of the Rules of Court, provides that a judgment on the pleadings is proper when an answer fails to render an issue or otherwise admits the material allegations of the adverse party's pleading. The essential question is whether there are issues generated by the pleadings. A judgment on the pleadings may be sought only by a claimant, who is the party seeking to recover upon a claim, counterclaim or cross-claim; or to obtain a declaratory relief.

In this case, the separate Answers filed by the respondents definitely tendered issues, as it made specific denials of the material allegations in the complaint and asserted affirmative defenses, which would bar recovery by petitioners. Moreover, it was erroneous for the RTC to require the filing of a motion for judgment on the pleadings and for the LBP and the DAR Secretary to file the same since in the first place, the latter are neither plaintiffs in the case nor counter-claimants or cross-claimants.

What the RTC obviously meant to be filed was a motion for summary judgment, a procedural device designed for the prompt disposition of actions, which may be rendered if the pleadings, supporting affidavits, depositions and admissions on file show that, after a summary hearing, there is no genuine issue regarding any material fact, except as to the amount of damages, and the moving party is entitled to a judgment as a matter of law, and which may be applied for by either a claimant or a defending party. This is obvious from the fact that although the Answers raised issues, these were not factual ones requiring trial, nor were they genuine issues, as the parties were able to agree to limit the same to whether petitioners are entitled to just compensation under R.A. No. 6657 and not P.D. No. 27.

(Lendl Floyd Montes)

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CIVIL PROCEDURE Notes/Case Digests – Selected Cases (4-Manresa 2008-2009) Rule 35 – Summary Judgments

NARRA INTEGRATED CORPORATION, vs. CA and NC INDUSTRIAL TRADE, INC. G.R. No. 137915. November 15, 2000

FACTS: Narra Integrated Corporation contracted from NC Industrial Trade, Inc., manpower services and materials. For failure of Narra Integrated Corporation to pay a balance of the consideration agreed by them NC Industrial Trade, Inc. filed a complaint for a sum of money and damages. NIC filed a third-party complaint against Kyung-Il Philippines, Inc. The issues thus joined, the court a quo set the case for pre-trial. Alleging that the answer filed by the defendant/third party plaintiff did not tender an issue on account of the said party’s admission of the material allegations of the complaint and the actionable documents attached thereto, the plaintiff filed a motion for summary judgment. The defendant/third-party plaintiff interposed its opposition thereto. Nevertheless, the motion was granted by the trial court in the partial decision which is the subject matter of the instant appeal ISSUE: Was there a summary judgment or judgment on the pleading rendered by the lower court?

HELD: At the onset, we note that the petitioner, as shown in its assignment of errors, is guilty of the usual error of equating a summary judgment with a judgment on the pleadings. While the petitioner makes mention of the lower court’s promulgation of a judgment on the pleadings, we have gone over the records and it is clear that what the trial court actually rendered was a summary judgment.

The existence or appearance of ostensible issues in the pleadings, on the one hand, and their sham or fictitious character, on the other, are what distinguish a proper case for summary judgment from one for a judgment on the pleadings. In a proper case for judgment on the pleadings, there is no ostensible issue at all because of the failure of the defending party’s answer to raise an issue. On the other hand, in the case of a summary judgment, issues apparently exist – i.e. facts are asserted in the complaint regarding which there is as yet no admission, disavowal or qualification; or specific denials or affirmative defenses are in truth set out in the answer – but the issues thus arising from the pleadings are sham, fictitious or not genuine, as shown by affidavits, depositions, or admissions. In other words, a judgment on the pleadings is a judgment on the facts as pleaded, while a summary judgment is a judgment on the facts as summarily proven by affidavits, depositions, or admissions.

As such, even if the answer does tender issues and therefore a judgment on the pleadings is not proper - a summary judgment may still be rendered on the plaintiff's motion if he can show that the issues thus tendered are not genuine, sham, fictitious, contrived, set up in bad faith, or patently unsubstantial. The trial court can determine whether there is a genuine issue on the basis of the pleadings, admissions, documents, affidavits and/or counter-affidavits submitted by the parties to the court.

In the instant case, the answer submitted by the petitioner appears on its face to tender issues. The question that must be answered then is whether or not these issues are sham or fictitious so as to justify a summary judgment? In answering this question, the trial court may rely on the pleadings, admissions, affidavits, and documents submitted by the private respondent in support of his Motion for Partial Summary Judgment These include the affidavits of petitioner’s own General Manager and of private respondent’s President and the Letter Contract between petitioner and private respondent.

To begin with, petitioner, in its Answer, does not deny that it entered into the letter-contract with private respondent for the supply of labor, trader, tools, equipment and supervision necessary for the installation of an electrical power distribution system, waste water treatment plant, and catwalk railings and ladder. Neither did it specifically deny the invoices issued by private respondent which show the various amounts owed by it to private respondent. Finally, petitioner did not dispute the unpaid balance which it still allegedly owes private respondent.

Petitioner insists, however, that there are genuine issues raised in its Answer which require a full-blown trial on the merits. Specifically, petitioner claims that paragraphs 7 to 10 of the Answer clearly allege that the project undertaken by respondent is subject to the acceptance by the project owner, Kyung-Il Phils., Inc. and/or by the petitioner, as General Contractor.

On these alleged special and affirmative defenses, we agree with the trial court and the CA that, rather than tendering genuine issues, these allegations merely give an unjustified reason for petitioner’s failure to pay the undisputed balance owing to private respondent. (Karla Deles )

Rule 36 – Judgments, Final Order and Entry Thereof

ROSITA DOMINGO, petitioner, vs. COURT OF APPEALS and ARANETA INSTITUTE OF AGRICULTURE, respondents (1996)

FACTS: Petitioner Rosita Domingo was one of the bona fide tenants-occupants of an eighty-seven (87) hectare land located at Barrio Baesa, Caloocan City then known as the Gonzales Estate. Upon petition of the tenants sometime in 1947, the Republic of the Philippines through the Rural Progress Administration (RPA) instituted an action which was docketed as Civil Case No. 131 with the then Court of First Instance of Rizal for the expropriation of the Gonzales Estate and its subsequent resale to the tenants thereof. The court ruled in favor of the Republic and on appeal to this Court, the said decision was affirmed. The Republic of the Philippines thereafter acquired title over the estate, administered by People's Homesite and Housing Corporation (PHHC). President ordered PHHC to sell a bigger portion of the estate to persons other than the bona fide tenants-occupants of the estate. On October 29, 1960, fifty-two (52) tenants-occupants of the estate, petitioner included, filed an action to compel the Republic of the Philippines through the PHHC to sell the entire estate to them pursuant to Commonwealth Act No. 539 and the decision of the Supreme Court in Civil Case No. 131. On May 3, 1961, private respondent Araneta Institute of Agriculture (AIA) filed a complaint in intervention on the basis of a document entitled 'KASUNDUAN NA MAY PAGBIBIGAY KAPANGYARIHAN HINGGIL SA ASYENDA GONZALES SA BAESA, CALOOCAN RIZAL." On November 28, 1961, AIA submitted to the lower court a Compromise Agreement it entered into with 13 tenants-occupants of the estate. The compromise states that the tenants sold their lot to intervenor and the manner of payment thereof. On December 23, 1961, the trial court approved the above Compromise Agreement in a partial decision embodying the said agreement. On February 6, 1962, counsel for the tenants filed a motion for immediate execution of the partial decision. The same was granted by the court on February 23, 1962. Petitioner filed a separate petition to annul the partial decision approving their agreement. On May 23, 1986, the lower court issued an order enforcing the said decision. Hence this petition. ISSUE: WON the petitioner is bound by the compromise agreement. HELD: The petition is not impressed with merit. A compromise is a contract whereby the parties, by making reciprocal concessions, avoid a litigation or put an end to one already commenced. Essentially, it is a contract perfected by mere consent, the latter being manifested by the meeting of the offer and the acceptance upon the thing and the cause which are to constitute the contract. Once an agreement is stamped with judicial approval, it becomes more than a mere contract binding upon the parties; having the sanction of the court and entered as its determination of the controversy, it has the force and effect of any other judgment. Consequently, a judgment rendered in accordance with a compromise agreement is immediately executory as there is no appeal from such judgment. The reason for this rule being that when both parties enter into an agreement to end a pending litigation and request that a decision be rendered approving said agreement, it is only natural to presume that such action constitutes an implicit waiver of the right to appeal against said decision. WHEREFORE, the instant petition is hereby DENIED.

(Bhing Doquilla )

Rule 37 – New Trial or Reconsideration

RIVERA vs. CA HELD: If negligence of counsel were made a basis for new trial, there would never be an end to litigation so long as a new counsel could be employed to allege and show that the prior counsel had not been sufficiently diligent, experienced or learned. (Kahlil Elbanbuena )

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CIVIL PROCEDURE Notes/Case Digests – Selected Cases (4-Manresa 2008-2009) Rule 38 – Relief from Judgments, Orders or Other Proceedings

SPS. DELA CRUZ ETC v. SPS ANDRES G.R. No. 161864 April 27, 2007

FACTS: Spouses Dela Cruz filed a complaint for annulment of title and/or reconveyance with damages against spouses Andres and the Director of Lands. Subsequently, petitioners, assisted by Atty. Rafael Villarosa, filed with the CA a petition for review. The appellate court dismissed the petition since the Certification of Non-Forum Shopping was signed by Atty. Villarosa instead of petitioners in violation of Section 5, Rule 7 of the 1997 Rules of Civil Procedure. Petitioners moved for reconsideration but it was denied.

Then petitioners filed with the CA a petition for relief from judgment praying that the dismissal of their petition for review be set aside since the gross negligence of their previous counsel did not bind them. The appellate court, however, denied their petition. It ruled that petitioners were bound by the action of their counsel as well as by his mistake or negligence.

ISSUES: Can petitioners avail of a petition for relief under Rule 38 of the 1997 Rules of Civil Procedure from a judgment of the CA due to their counsel’s negligence when he signed the Certification of Non-Forum Shopping?

HELD: Petition is denied for lack of merit. A petition for relief from judgment under Rule 38 of the 1997 Rules of Civil Procedure is an equitable remedy that is allowed only in exceptional cases when there is no other available or adequate remedy. It may be availed of only after a judgment, final order or other proceeding was taken against the petitioner in any court through fraud, accident, mistake, or excusable negligence.

While the law uses the phrase "any court," it refers only to Municipal/Metropolitan and Regional Trial Courts. The procedure in the CA and this Court are governed by separate provisions of the Rules of Court and may, from time to time, be supplemented by additional rules promulgated by this Court through resolutions or circulars. As it stands, neither the Rules of Court nor the Revised Internal Rules of the Court of Appeals allows the remedy of petition for relief in the CA.

Moreover, under Section 1(b), Rule 41 of the 1997 Rules of Civil Procedure, the denial of a petition for relief from judgment is subject only to a special civil action for certiorari under Rule 65. In seeking to reverse the appellate court’s decision denying their petition for relief from judgment by a petition for review on certiorari under Rule 45, petitioners have availed of the wrong remedy twice.

Nevertheless, even if this Court were to delve into the merits of this petition, the same must still be denied. What petitioners’ counsel did in this case was to attach an improper Certification of Non-Forum Shopping to their petition for review with the appellate court. While this omission can plausibly qualify as simple negligence, it does not amount to gross negligence to justify the annulment of the proceedings below.

For a claim of counsel’s gross negligence to prosper, nothing short of clear abandonment of the client’s cause must be shown. The negligence of counsel must be so gross that the client is deprived of his day in court, the result of which is that he is deprived of his property without due process of law. Thus, where a party was given the opportunity to defend his interests in due course, he cannot be said to have been denied due process of law, for this opportunity to be heard is the very essence of due process. Here, the case underwent a full-blown trial. Both parties were adequately heard, and all issues were ventilated before the decision was promulgated.

It should be pointed out that in petitions for relief from judgment, meritorious defenses must be accompanied by the ground relied upon, whether it is fraud, accident, mistake, excusable negligence, extrinsic fraud or lack of jurisdiction. In the instant case, there being neither excusable nor gross negligence amounting to a denial of due process, meritorious defenses cannot alone be considered.

(Karla Deles )

Rule 39 – Execution, Satisfaction and Effect of Judgments

CITY OF ILIGAN V. CITY MANAGEMENT HELD: 1. Normally, execution cannot be obtained until and unless:

a. the judgment has become final and executory; b. the right of appeal has been renounced or waived; c. the period for appeal has lapsed without an appeal having

been filed; or d. having been filed, the appeal has been resolved and the

records of the case have been returned to the court of origin -- in which case, execution shall issue as a matter of right.

2. The ascertainment of good reasons for execution pending appeal lies within the sound discretion of the trial court, and the appellate court will not normally disturb such finding. Intervention by the latter may be proper, if it is shown that there has been an abuse of discretion. (Kahlil Elbanbuena ) DIESEL CONSTRUCTION COMPANY, INC. v. JOLLIBEE FOODS

CORP. G.R. No. 136805 January 28, 2000

The execution of a judgment pending appeal is an exception to the general rule that only final judgment may be executed. An exceptional execution must be founded on "good reason," which rest on sound judicial discretion. The alleged financial distress of the prevailing juridical entity is nor, by itself, a "good reason." FACTS: DCCI instituted an action for the recovery of escalated construction costs which it had allegedly incurred in the construction of buildings owned by Respondent JFC. DCCI obtained a favorable judgment from the RTC. However, contending that the RTC failed to order payment of extra work done, DCCI filed a Notice of Appeal; and a Motion for Execution Pending Appeal. In said Motion, it cited as "good reasons" its financial distress as a small business. The trial court allowed execution pending appeal. And in view of both parties' appeals, the trial court forwarded the original records of the case to the appellate court for further proceedings.

CA directed the RTC to issue a writ of execution upon petitioner's posting a bond, but afterwards it issued an order to stay execution upon respondent's filing of a supersedeas bond. ISSUE: WON CA erred in directing the stay of execution pending appeal previously allowed by the lower court.

HELD: The CA may not be compelled to enforce a Special Order issued by the trial court. The CA has its own separate and original discretionary jurisdiction to grant or to stay execution pending appeal, except in civil cases decided under the Rules on Summary Procedure and in other cases when the law or the Rules provide otherwise.

Rule 39 of the 1997 Rules states: Sec. 2. Discretionary execution. (a) Execution of a judgment or final order pending appeal. On motion of the prevailing party with notice to the adverse party filed in the trial court while it has jurisdiction over the case and is in possession of either the original record or the record on appeal, as the case may be, at the time of the filing of such motion, said court may, in its discretion, order execution of a judgment or final order even before the expiration of the period to appeal.

After the trial court has lost jurisdiction, the motion for execution pending appeal may be filed in the appellate court.

Discretionary execution may only issue upon good reasons to be stated in a special order after due hearing.

The foregoing sections mean that after the perfection of the appeal and the transmittal of the records, the trial court loses jurisdiction over the case. Henceforth, it may no longer grant a motion for, or issue a writ of immediate execution; to do so would be an abuse of discretion.

While it is true that the trial court granted the Motion of the petitioner for execution pending appeal, it did not actually issue a writ of execution, because the latter had failed to comply with the Special Order proviso requiring the posting of a bond. Eventually, two separate appeals filed by both parties were perfected, and the records of the case were transmitted by the RTC to the CA. From then on, the trial court lost jurisdiction to issue the said writ. When the petitioner asked the CA for the issuance of the writ at the time, it thereby invoked the original discretionary jurisdiction of the latter to grant execution pending appeal.

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CIVIL PROCEDURE Notes/Case Digests – Selected Cases (4-Manresa 2008-2009) ISSUE: WON there was good reason for the execution pending appeal to be allowed.

The Court must stress that the execution of a judgment before its finality must be founded upon good reasons. The yardstick remains the presence or the absence of good reasons consisting of exceptional circumstances of such urgency as to outweigh the injury or damage that the losing party may suffer, should the appealed judgment be reversed later. Good reason imports a superior circumstance that will outweigh injury or damage to the adverse party. In the case at bar, petitioner failed to show "paramount and compelling reasons of urgency and justice." Petitioner cites as good reason merely the fact that "it is a small-time building contractor that could ill-afford the protracted delay in the reimbursement of the advances it made for the aforesaid increased-costs of construction of the buildings."

Petitioner's allegedly precarious financial condition, however, is not by itself a jurisprudentially compelling circumstance warranting immediate execution. The financial distress of a juridical entity is not comparable to a case involving a natural person such as a very old and sickly one without any means of livelihood, an heir seeking an order for support and monthly allowance for subsistence, or one who dies.

Indeed, the alleged financial distress of a corporation does not outweigh the long standing general policy of enforcing only final and executory judgments. Certainly, a juridical entity like petitioner corporation has, other than extraordinary execution, alternative remedies like loans, advances, internal cash generation and the like to address its precarious financial condition. (Karla Deles )

REPUBLIC OF THE PHILIPPINES vs. LOURDES ABIERA NILLAS January 23, 2007

FACTS: Respondent Lourdes Abiera Nillas (Nillas) filed a Petition for Revival of Judgment with the Regional Trial Court (RTC). It was alleged that the then Court of First Instance (CFI) of Negros Oriental rendered a Decision Adicional in Expediente Cadastral No. 14, captioned as El Director De Terrenos contra Esteban Abingayan y Otros. In the decision, the CFI, acting as a cadastral court, adjudicated several lots, together with the improvements thereon, in favor of named oppositors who had established their title to their respective lots and their continuous possession thereof since time immemorial and ordered the Chief of the General Land Registration Office, upon the finality of the decision, to issue the corresponding decree of registration. No responsive pleading was filed by the Office of the Solicitor General (OSG), although it entered its appearance and simultaneously deputized the City Prosecutor of Dumaguete City to appear whenever the case was set for hearing and in all subsequent proceedings. The RTC rendered a Decision finding merit in the petition for revival of judgment, and ordering the revival of the 1941 Decision, as well as directing the Commissioner of the Land Registration Authority (LRA) to issue the corresponding decree of confirmation and registration based on the 1941 Decision. The OSG appealed the RTC Decision to the Court of Appeals, arguing in main that the right of action to revive judgment had already prescribed The appeal was denied by the appellate court. ISSUE: Whether or not the right of action to revive judgment had already prescribed RULING: No. The rule is that "neither laches nor the statute of limitations applies to a decision in a land registration case." We fail to understand the arguments of the appellant in support of the assignment [of error], except insofar as it supports his theory that after a decision in a land registration case has become final, it may not be enforced after the lapse of a period of 10 years, except by another proceeding to enforce the judgment or decision. Authority for this theory is the provision in the Rules of Court to the effect that judgment may be enforced within 5 years by motion, and after five years but within 10 years, by an action (Sec. 6, Rule 39). This provision of the Rules refers to civil actions and is not applicable to special proceedings, such as a land registration case. This is so because a party in a civil action must immediately enforce a judgment that is secured as against the adverse party, and his failure to act to enforce the same within a reasonable time as provided in the Rules makes the decision unenforceable against the losing party. In special proceedings[,] the purpose is to establish a status, condition or fact; in land registration proceedings, the ownership by a person of a parcel of land is sought to be established. After the ownership has been proved and confirmed by judicial

declaration, no further proceeding to enforce said ownership is necessary, except when the adverse or losing party had been in possession of the land and the winning party desires to oust him therefrom. (Norliza Mamukid )

ISAAC VILLEGAS petitioner, vs. VICTOR LINGAN and ATTY. ERNESTO CARREON respondents. G.R. No. 153839

June 29, 2007 FACTS: Petitioner was the registered owner of a parcel of land in Cagayan. In order to secure the payment of a loan from DBP, the petitioner constituted a REM over the said parcel of land in favor of DBP. The said loan and mortgage was subsequently transferred by the DBP to the Home Mutual Development Fund (HMDF). When the petitioner failed to settle his loan, the REM constituted over the property was foreclosed, the property was sold at public auction and, as the HMDF was itself the highest bidder at such public auction, a certificate of sheriff’s sale was issued. By virtue of a power of attorney (GPA) executed by petitioner’s wife, Marilou Villegas in favor of Gloria Catral, the latter redeemed the property from the HMDF.

In 1996, Catral, by virtue of the same GPA, executed a Deed of Sale in favor of respondent Victor Lingan.

Petitioner filed a Complaint for Annulment of Title and Instrument with Damages with the RTC against respondent. Petitioner argued that the GPA executed in favor of Catral created a principal-agent relationship only between his wife, Marilou as principal, and Catral, as agent, and then only for the latter to administer the properties of the former and that he never authorized Catral to administer his properties, particularly, herein subject property. However, RTC dismissed the complaint.

On appeal to CA, CA affirmed the decision of RTC and ruled that when the redemption of the property had been made by Catral by virtue of a GPA executed in her favor by Marilou, it follows that the petitioner is no longer the owner of the subject property but his wife, Marilou; that the issue as to whether the power of attorney was a special or general one is of no moment because the petitioner was no longer the owner of the property when it was sold; in other words, any disposition of the property needs no power of attorney from the petitioner himself. ISSUE: Whether Marilou, the wife of the petitioner, as successor-in-interest, may validly redeem the property in question. RULING: YES. Section 27, Rule 39 of the 1997 Rules of Civil Procedure, provides:

SEC. 27. Who may redeem real property so sold. –Real property sold as provided in the last preceding section, or any part thereof sold separately, may be redeemed in the manner hereinafter provided, by the following persons:

(a) The judgment obligor, or his successor-in-interest

in the whole or any part of the property;

The “successor-in-interest” of the judgment debtor referred to in the above provision includes a person who succeeds to his property by operation of law, or a person with a joint interest in the property, or his spouse or heirs.

Section 33, Rule 39, Rules of Court, states: SEC. 33. Deed and possession to be given at

expiration of redemption period; by whom executed or given. – If no redemption be made within one (1) year from the date of the registration of the certificate of sale, the purchaser is entitled to a conveyance and possession of the property; or, if so redeemed whenever sixty (60) days have elapsed and no other redemption has been made, and notice thereof given, and the time for redemption has expired, the last redemptioner is entitled to the conveyance and possession; but in all cases the judgment obligor shall have the entire period of one (1) year from the date of the registration of the sale to redeem the property.

Upon the expiration of the right of redemption, the purchaser or redemptioner shall be substituted to and acquire all the rights, title, interest and claim of the judgment obligor to the property at the time of the levy. The possession of the property shall be given to the purchaser or last redemptioner by the same officer unless a third party is actually holding the property adversely to the judgment obligor.

Under the above provision, petitioner could have redeemed the property from Marilou after she had redeemed it. The pleadings filed and the records of this case do not show that petitioner exercised said right. Consequently, as correctly held by the CA, Marilou acquired

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CIVIL PROCEDURE Notes/Case Digests – Selected Cases (4-Manresa 2008-2009) ownership of the subject property. All rights and title of the judgment obligor are transferred upon the expiration of the right of redemption. And where the redemption is made under a property regime governed by the conjugal partnership of gains, Article 109 of the Family Code provides that property acquired by right of redemption is the exclusive property of the spouses redeeming the property. Clearly, therefore, Marilou, as owner, had the right to sell the property to another. (TeenTeen Pague ) Rule 40 – Appeal from the MTC to the RC

NEYPES v. CA (Sept. 14, 2005) HELD: The court now allow a fresh period of 15 days within which to file the notice of appeal in the Regional Trial Court, counted from receipt of the order dismissing a motion for a new trial or motion for reconsideration. Henceforth, this “fresh period rule” shall also apply to Rule 40 governing appeals from the Municipal Trial Courts to the Regional Trial Courts; Rule 42 on petitions for review from the Regional Trial Courts to the Court of Appeals; Rule 43 on appeals from quasi-judicial agencies to the Court of Appeals and Rule 45 governing appeals by certiorari to the Supreme Court. (Kahlil Elbanbuena )

INTERNATIONAL SCHOOL, INC. (Manila), petitioner, vs. HON. COURT OF APPEALS, SPOUSES ALEX AND OPHELIA

TORRALBA, respondents. G.R. No. 131109 June 29, 1999

FACTS: The RTC of QC rendered a decision in favor of spouses Torralba in a civil case entitled "Spouses Torralba vs. International School, Inc. (ISM)” involving a complaint for damages due to the death of plaintiffs' only son, Ericson Torralba while in the custody of ISM and its officers.

ISM appealed to the CA. During the pendency thereof, the spouses Torralba filed a motion for execution pending appeal before the lower court on the grounds that the appeal is merely dilatory and that the filing of a bond is another good reason for the execution of a judgment pending appeal. In an order dated June 19, 1996, the lower court granted execution pending upon the posting of a bond by the spouses Torralba and the lower court issued a Notice of Garnishment which was served to Citibank. On the other hand, ISM filed a MFR or for approval of supersedeas bond.

However, the lower court denied ISM's MFR and authorized and directed the Sheriff to encash the Citibank Manager's Check (bank deposits of ISM) and to turn over the proceeds therefor after deducting all legal fees and charges if any, to the plaintiffs or their representative.

In view of the above order of the lower court, ISM filed a motion to withdraw the superseads bond and filed a petition for certiorari before the CA. However, CA dismissed the petition and found that the grounds relied upon by the lower court in granting execution pending appeal that the appeal taken by ISM is merely dilatory and the filing of a bond constitute good reasons.

The CA agreed with the lower court that ISM's appeal appears to be dilatory in view of its "virtual admission of fault when it adopted the project" "Code Red" consisting of safety and emergency measures, only after the death of plaintiffs-spouses Torralba's only son"; and that the delay has already affected the plaintiffs-spouses Torralba financially.

Hence this petition.

ISSUE #1: W/N the grant/issuance of writ of execution pending appeal was proper. RULING: It must be stressed that private respondents-spouses motion/application for an execution pending appeal was premised on the following reasons: that the appeal was being taken for purpose of delay and that they are filing a bond. This Court has ruled in Ong vs. Court of Appeals that, where the reason given is that an appeal is frivolous and dilatory, execution pending appeal cannot be justified. It is not proper for the trial court to find that an appeal is frivolous and consequently to disapprove it since the disallowance of an appeal by said court constitutes a deprivation of the right to appeal. The authority to disapprove an appeal rightfully pertains to the appellate court. For purposes only of determining the correctness of the writ of execution pending appeal, the Supreme Court cannot see how the lower courts came upon the conclusion of virtual admission of fault or negligence by ISM based on the exchange where ISM's swimming coach Noli Reloj admitted that he read the school paper article introducing "Code Red". As correctly pointed out by ISM, the article was not an official statement of the school, but merely an opinion of

its author. Moreover, SC cannot see how the statement of Mr. Noli Reloj that he read the article on "Code Red" can be construed as an admission of liability by the school. Clearly then, the conclusion of the lower courts that the appeal is dilatory rests on shaky ground. ISSUE #2: W/N the filing of a bond can be considered a good reason to justify immediate execution under Section 2, Rule 39. RULING: In the case of Roxas vs. Court of Appeals, the Court ruled that, to consider the mere posting of a bond a "good reason" would precisely make immediate execution of a judgment pending appeal routinary, the rule rather than the exception. Judgments would be executed immediately, as a matter of course, once rendered, if all that the prevailing party needed to do was to post a bond to answer for damages that might result therefrom. This is a situation, to repeat, neither contemplated nor intended by law.

In fine, the rule is now settled that the mere filing of a bond by the successful party is not a good reason for ordering execution pending appeal, as "a combination of circumstances is the dominant consideration which impels the grant of immediate execution, the requirement of a bond is imposed merely as an additional factor, no doubt for the protection of the defendant's creditor. Since we have already ruled that the reason that an appeal is dilatory does not justify execution pending appeal, neither does the filing of a bond, without anything more, justify the same. (TeenTeen )

Change will not come if we wait for some other person or some other time.

We are the ones we've been waiting for. We are the change that we seek. -Barack Obama

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