CIVIL PROCEDURE CASES Motions (Rule 12, 15 & 16)
G.R. No. L-51458 July 19, 1982
MANUEL YAP, petitioner, vs. HON. COURT OF APPEALS, RAYMOND AND LYDIA
TOMASSI, respondents.
Petitioner herein seeks to set aside respondent Court of Appeals 1 Decision of May 22,
1979 and its Resolution of July 26, 1979 in CA-G.R. No. 07966-SP, sustaining the trial Court's
action disapproving petitioner's Record on Appeal for having been filed out of time.
The antecedent facts follow:
On September 11, 1973, private respondents, spouses Raymond Tomassi and Lydia
Tomassi, filed a complaint for Damages against petitioner Manuel Yap, before the Court
of First Instance of Cebu, Branch XIII, docketed as Civil Case No. R-13571.
Petitioner-defendant filed his Answer with Special Defenses and Counterclaim, after
which, trial ensued. On January 31, 1978, the Trial Court rendered judgment against
petitioner, ordering him to pay private respondents P30,000.00, as moral and exemplary
damages, P20,000.00, as actual damages, P5,000.00, as attorney's fees, and the costs
of suit.
Copy of the Decision was received by petitioner-defendant on February 10, 1978. He
filed, on March 2, 1978, a Notice of appeal, and on March 7, 1978, a Cash Appeal Bond
and Motion for Extension of twenty days from March 13, 1978 (or until April 2, 1978)
within which to file his Record on Appeal. Said Motion was not acted upon by the Trial
Court. On March 30, 1978, or within the extended period prayed for, petitioner submitted
his Record on Appeal. On the same date, respondents filed a Motion for the Issuance of
Writ of Execution alleging that the Decision had already become final and executory as
petitioner's Motion for extension of time to file Record on Appeal failed to comply with the
requirements of the Rules of Court on Motions, and therefore, did not toll the running of
the period to perfect an appeal.
On April 24, 1978, the trial Court disapproved petitioner's Record on Appeal, stating:
The records show that on March 7, 1978, defendant filed a MOTION
FOR EXTENSION OF TIME TO FILE RECORD ON APPEAL, but since
said motion did not contain any notice of hearing, the COURT did not act
on it. The reglementary period expired on March 13, without any
extension granted to defendant. It is rather, too presumptuous, on the
part of the defendant to assume that the Court would grant the extension
just because he prayed for it.
IN VIEW OF THE FOREGOING, the approval of defendant's RECORD
ON APPEAL is hereby denied for having been filed out of time.
Petitioner moved to reconsider the said Order, but reconsideration was denied by the
Trial Court, Petitioner then filed with the Court of Appeals a Petition for "Certiorari and
Mandamus" docketed as CA-G.R. No. 07966-SP, praying that the Trial Court be ordered
to approve his Record on Appeal and give due course thereto.
On May 22, 1979, the Court of Appeals dismissed the Petition ruling that the Trial Court
did not commit grave abuse of discretion in disapproving the Record on Appeal as the
same was filed beyond the prescribed period.
Reconsideration of the Decision was sought by petitioner but respondent Court denied
the same for lack of merit.
Petitioner hied to this Court, with the present Petition for Review on Certiorari, posing the
following queries:
1. Is a motion for extension of time to file record on appeal, a litigated and
contentious motion which requires a notice of hearing before it may be
acted upon by the trial court or is it one that may be heard ex-parte and
therefore does not need a notice of hearing?
2. In disapproving petitioner's record on appeal which was filed within the
extended period prayed for, did the Court of Appeals not depart from the
liberal posture adopted by the Honorable Supreme Court in a long line of
eases to disregard technicalities so that cases may be decided on their
merits?
It is not disputed that petitioner's Notice of Appeal, Cash Appeal Bond, and Motion for
Extension to File Record on Appeal were seasonably filed, and that the Record on
Appeal was submitted within the extended period requested. The only issue is whether
the said Motion for extension should mandatorily comply with the requirements of the
Rules on Motions before the same may be acted upon by the trial Court. Sections 4, 5
and 6 of Rule 15 provide:
Section 4. Notice.-Notice of a motion shag be served by the applicant to
all parties concerned at least three days before the hearing thereof,
together with a copy of the motion, and other papers accompanying it.
1

The Court, however, for good cause may hear a motion on shorter notice,
specially on matters which the Court may dispose of on its own motion.
Section 5. Contents of Notice.-The notice shall be directed to the parties
concerned, and shall state the time and place for the hearing of the
motion.
Section 6. Proof of service to be filed with motion.-No motion shall be
acted upon by the court, without proof of service of the notice
hereof, except when the court is satisfied that the rights of the adverse
party or parties are not affected. (Emphasis supplied)
As a general rule, notice of motion is required where a party has a right to resist the relief
sought by the motion and principles of natural justice demand that his right be not
affected without an opportunity to be heard. 2 The three-day-notice required by law is
intended not for the benefit of the movant but to avoid surprises upon the adverse party and
to give the latter time to study and meet the arguments of the motion. 3
CIVIL PROCEDURE CASES Motions (Rule 12, 15 & 16)
assistance in obtaining a fair, expeditious and reasonable determination
of his rights as he seeks recourse to the court of law for justice without
technicalities and without strict adherence to the letter of the Rules,
thereby promoting their objective. ...
Accordingly, we find for petitioner. Dismissal of appeals on purely technical grounds is
frowned upon as the policy of the Court is to encourage the hearing of appeals on the
merits. 5 Litigants should be afforded every opportunity to establish the merits of their cases
without the constraints of technicalities. 6
WHEREFORE, the Petition is granted. The questioned Decision and Resolution of
respondent Court of Appeals dated May 22, 1979 and July 26, 1979, respectively, are
hereby annulled and set aside. The Court of First Instance of Cebu, Branch XIII, is
hereby directed to approve petitioner's Record on Appeal and to elevate the same to the
Court of Appeals.
No costs.

The Motion in question does not affect the substantive rights of private respondents as it SO ORDERED.
merely seeks to extend the period to file the Record on Appeal, which extension may be
granted by the Trial Court upon application made prior to the expiration of the original
period. 4 Neither was there any claim that said Motion, which was grounded on justifiable
reason, was interposed to delay the appeal. As early as Moya vs. Barton, 76 Phil. 831 [1946],
this Court held that a Motion requesting an extension within which to file Record on Appeal
may be considered as one which may be heard ex-parte. In Que Tiac vs. Republic, 43 SCRA
56 [1972], it was similarly held that a telegraphic Motion for extension of time to file a Record
on Appeal is addressed to the discretion of the Court, which may act thereon ex-parte. And in
the more recent case of Commercial Union Assurance Company Limited vs. Lepanto
Consolidated Mining Company, 86 SCRA 79, 98 [1978], this Court ruled that the Trial Court
has the power and authority to act on an ex-parte Motion for extension of time to file the
Record on Appeal, which was filed within the original period prescribed by the Rules since the
said Motion did not appear to be a litigated or a contentious Motion and may be acted upon
even without proof of service on adverse party.

In the same case, this Court held:

... While the earlier cases pertinent to the issue command mandatory
compliance with Sections 4, 5 and 6 of Rule 15 of the Rules of Court, the
weight of the authorities recently promulgated by the Supreme Court
culminating in Amante v. Sunga, 64 SCRA 192 and Pimentel vs. Court of
Appeals, 64 SCRA 475, tend towards liberally giving every litigant the
2

G.R. No. L-40945 November 10, 1986
IGMEDIO AZAJAR, petitioner, vs. THE HONORABLE COURT OF APPEALS (Second
Division) and CHAM SAMCO & SONS, INC., respondents.
Petitioner seeks reversal of the Resolution of the respondent Court of Appeals (now
Intermediate Appellate Court) dated March 25, 1975 setting aside the judgment by
default rendered against private respondent by the Court of First Instance, and directing
that said respondent be allowed to file its answer to the complaint and after joinder of
issues, trial be had and judgment rendered on the merits.
This case originated from a complaint filed by petitioner Igmedio Azajar against
respondent Cham Samco and Sons, Inc. in the Court of First Instance (now Regional
Trial Court) of Camarines Sur. 1 Azajar's claim, briefly, is that he had purchased from
defendant (hereafter referred to simply as Cham Samco), thru the latter's agent, 100 Kegs of
nails of various sizes, specified in one of Cham Samco's printed order forms, and had given
to the agent P18,000.00 in fun payment thereof; but in breach of contract, Cham Samco had
offered to deliver only a part of the quantity ordered.
Cham Samco filed a motion to dismiss on two grounds: (1) failure of the complaint to
state a cause of action-the complaint's language indicating not a perfected sale but
merely an "offer to buy by plaintiff that was partly accepted by defendant," and failing to
show that as explicitly required by the order form prices had been confirmed by Cham
Samco's "Manila Office," 2 and (2) that venue was improperly laid-Cham Samco's invariable
conditions in transactions of this nature, as Azajar well knew from many such transactions in
the past, being that "any legal action thereon must be instituted in the City of Manila. 3
The motion to dismiss contained a notice addressed to the Clerk of Court reading as follows:
The Clerk of Court
Court of First Instance of Camarines Sur
Naga City
Sir:
Please submit the foregoing motion to the Court for its consideration and
resolution immediately upon receipt thereof.
Makati, Rizal for Naga City, February 4, 1974 (SGD) POLO S. PANTALEON
Copy furnished:
CIVIL PROCEDURE CASES Motions (Rule 12, 15 & 16)
Atty. Augusta A. Pardalias
Naga City
NF-927 4
It is this notice that has given rise to the controversy at bar.
Contending that such a notice was fatally defective and rendered the Motion to Dismiss
incapable of to the period to answer, Azajar filed a motion dated February 20, 1974 to
declare Cham Samco in default, which the Court granted. By Order dated February 22,
1974 the Court pronounced Cham Samco in default and allowed Azajar to present
evidence ex parte. The Court justified the order of default in the wise:
On February 4, 1974, defendant thru counsel instead of an answer to the
complaint, filed a "Motion to Dismiss" which, in legal contemplation, is not a
motion at an because the ."notice" therein is directed to the Clerk of Court
instead of to the party concerned (as required by Section 5, Rule 15 of the Rules
of Court) and is without the requisite notice of time and place of hearing; that a
motion "with a notice of hearing (a) directed to the Clerk of Court not to the
parties; and (b) merely stating that the same be "submitted for resolution of the
Honorable Court upon receipt thereof," copy of which motion was duly furnished
to and received by "the adverse counsel is fatally defective and did not toll the
running of the period to appeal" (Cladera v. Sarmiento, 39 SCRA 552).
Consequently, inasmuch as the "motion to dismiss in this case is a mere scrap of
paper because it is without the requisite notice of time and place of hearing
(Manakil v. Hevilla, 42 Phil. 81; Roman Catholic Bishop v. Unisan, 44 Phil. 866;
Director of Lands v. Sanz, 45 Phil. 117; and Manila Surety v. Bath, 14 SCRA
435), the filing thereof did not suspend the running ' of the period to file the
required responsive pleading. That from' February 4, 1974 to February 21, 1974,
seventeen (17) days had lapsed and defendant failed to file any responsive
pleading ... 5
Then on March 30, 1974, the Trial Court rendered judgment by default against defendant
Cham Samco ordering it:
... to deliver immediately to the plaintiff the nails mentioned in the Order Form No.
9020 (Exhibit A); (2) requiring defendant to pay plaintiff the sum of P15,000.00 by
way of actual damages, the sum of P10,000.00 by way of consequential
damages, plus interest in both instances, and the additional sum of P5,000.00,
for exemplary damages; (3) ordering defendant to pay plaintiff the sum of
3

P7,500.00 for attorney's fees and related expenses of litigation; and (4) to pay
the costs.
Cham Samco filed a Motion for New Trial on April 9, 1974. It contended that its failure to
observe the rules governing notice of motions was due to excusable negligence,
"because the grounds alleged in the Motion to Dismiss were all in such nature and
character that addressed themselves to a motu proprio resolution by the court and thus
rendered a hearing dispensable. 6 It also alleged certain defenses available to it which if
duly alleged and proven, would absolve it from any liability. 7 This motion was denied.
Cham Samco went to the Court of Appeals on certiorari asserting that the trial court
acted with grave abuse of discretion amounting to lack of jurisdiction in declaring it in
default and then rendering judgment by default. 8 The petition was dismissed for lack of
merit by the Court of Appeals on November 20, 1974. 9
But on motion for reconsideration seasonably presented, the Court of Appeals reversed itself.
By Resolution dated March 25, 1975, 10 it set aside the Trial Court's order of default of
February 22, 1974, judgment by default of March 13, 1974, and Order dated June 4, 1974
denying Cham Samco's motion for new trial, and directed the lower Court to allow Cham
Samco to file its answer to the complaint and upon due joinder of issues, to try and decide the
case on the merits.
The Court held that:
... (t)he notice in the motion which was addressed to the clerk of court asking him
to submit the motion for the consideration of the court is a substantial compliance
with the provision of section 3 Rule 16 of the Rules of Court. Verily under the said
rule, the Court has the alternative of either hearing the case or deferring the
hearing and determination thereof until the trial on the merits. Thus upon the
filing of said motion the court should have set the motion for hearing or outrightly
deny the motion, or otherwise postpone the hearing until the trial on the ground
that the grounds thereof do not appear to be indubitable. The prompt filing and
apparently valid grounds invoked in the motion are not the acts and declarations
of a defaulting party.
... (E)ven assuming that the declaration of default of the petitioner was in order
we find that the trial court committed a grave abuse of discretion when it denied
the motion for new trial that was filed by the petitioner not only on the ground of
excusable negligence we have above discussed but also on the ground that it
has a meritorious defense. and
CIVIL PROCEDURE CASES Motions (Rule 12, 15 & 16)
... (E)xcessive damages have been awarded to the private respondent. In
addition to ordering the petitioner to deliver to the private respondent the nails
ordered by the latter, the petitioner was also ordered to pay not only P15,000
actual damages for profits that the private respondent could have earned but also
consequential damages of P10,000 for the unrealized profits that the said
earnings and capital of the plaintiff could have earned, plus interest in both
instances, exemplary damages of P5,000 and P7,500 for attorney's fees and
related expenses of litigation. Thus for the capital of respondent of P18,100.00 in
the purchase of the nails, the petitioner was ordered to pay damages of a total of
P37,500.00, which including the interest awarded can amount to over P40,000,
more than double the value of the said investment of respondent. Under Section
1, Rule 37 of the Rules of Court award of excessive damages could be a ground
for new trial.
The Court concluded its opinion with the observation that "the ends of justice would be
better served in this case if we brush aside technicality and afford the petitioner its day in
court.
It was wrong, of course, for Cham Samco to have failed to set its motion to dismiss for
hearing on a specified date and time. The law explicitly requires that notice of a motion
shall be served by the appellant to all parties concerned at least three (3) days before the
hearing thereof, together with a copy of the motion, and of any affidavits and other
papers accompanying it; 11 and that the notice shag be directed to the parties concerned,
stating the time and place for the hearing of the motion. 12 The uniform holding of this Court
has been that a failure to comply with the requirement is a fatal flaw. 13 Such notice is required
to avoid surprises upon the opposite party and give the latter time to study and meet the
arguments of the motion, as well as to determine or make determinable the time of
submission of the motion for resolution. 14
Cham Samco quite frankly admits its error. It pleads however that under the circumstances
the error be not regarded as irremediable or that it be deemed as constituting excusable
negligence, warranting relief. It argues that legal and logical considerations, which it took to
be tenable, caused it to theorize that a hearing on the motion was dispensable. It also adverts
to its position of affirmative defenses in addition to those set out in its motion to dismiss which
if ventilated and established at the trial would absolve it from all liability under the complaint.
Cham Samco's belief that it was not necessary that its motion to dismiss be set for
hearing was avowedly engendered by two factors, namely:
1) the fact that while the Rules of Court "specify the motions which can be heard only
with prior service upon adverse parties, 15 said Rules "do not point out which written
4
 CIVIL PROCEDURE CASES Motions (Rule 12, 15 & 16)
motions may be ex parte, preferring, it appears, to leave to the court, in motions other than
those specified, the discretion either to ex parte resolve ... or to call the parties to a
hearing ...; 16 and

2) the further fact that its motion to dismiss was based on two grounds on which a
hearing was superfluous, the first, failure of the complaint to state a cause of action,
being determinable exclusively from the allegations of the complaint and no evidence
being allowable thereon; and the second, that venue is improperly laid, being resolvable
exclusively on the basis of documents annexed to the motion. 17

These considerations, to be sure, did not erase movant's duty to give notice to the adverse
party of the date and time of the hearing on its motion, the purpose of said notice being, as
already stressed, not only to give the latter time to oppose the motion if so minded, but also to
determine the time of its submission for resolution. Without such notice, the occasion would
not arise to determine with reasonable certitude whether and within what time the adverse
party would respond to the motion, and when the motion might already be resolved by the
Court. The duty to give that notice is imposed on the movant, not on the Court.

Withal the reasons for Cham Samco's erroneous notion of the dispensability of a hearing
on its motion to dismiss are not utterly without plausibility. This circumstance, taken
together with the fact, found by the Intermediate Appellate Court and not disputed by
petitioner Azajar, that Cham Samco has meritorious defenses which if proven would
defeat Azajar's claim against it, and the eminent desirability more than once stressed by
this Court that cases should be determined on the merits after full opportunity to all
parties for ventilation of their causes and defenses, rather than on technicality or some
procedural imperfections, 18 all conduce to concurrence with the Court of Appeals that "the
ends of justice would be better served in this case if we brush aside technicality and afford
the petitioner its day in court.

WHEREFORE, the Resolutions of the Court of Appeals appealed from, are affirmed.
Costs against petitioner.

SO ORDERED.

5

G.R. No. 163785 December 27, 2007
KKK FOUNDATION, INC., Petitioner, vs. HON. ADELINA CALDERON-BARGAS, in
her capacity as Presiding Judge of the REGIONAL TRIAL COURT, Branch 78 of
Morong, Rizal, SHERIFF IV SALES T. BISNAR, THE REGISTER OF DEEDS FOR
MORONG, RIZAL, and IMELDA A. ANGELES, Respondents.
In this petition for review under Rule 45 of the Rules of Court, petitioner urges this Court
to reverse and set aside the Decision 1 dated November 28, 2003, and the
Resolution2 dated May 26, 2004, of the Court of Appeals in CA-G.R. SP No. 73965.
The antecedent facts are as follows:
On March 1, 2002, petitioner KKK Foundation, Inc. filed a complaint for Annulment of
Extra-judicial Foreclosure of Real Estate Mortgage and/or Nullification of Sheriffs Auction
Sale and Damages with Prayer for the Issuance of Temporary Restraining Order and/or
Writ of Preliminary Injunction.3 Petitioner alleged that: (1) the auction sale was made with
fraud and/or bad faith since there was no public bidding; (2) the sheriff did not post the
requisite Notice of Sheriffs Sale; (3) the petition for extrajudicial foreclosure was fatally
defective since it sought to foreclose properties of two different entities; (4) the
foreclosed properties were awarded and sold to Imelda A. Angeles for an inadequate bid
of only P4,181,450; and (5) the auction sale involved eight parcels of land covered by
individual titles but the same were sold en masse.
On March 7, 2002, Judge Adelina Calderon-Bargas issued a temporary restraining order
preventing Angeles from consolidating her ownership to the foreclosed properties. On
even date, petitioner and Angeles executed a Compromise Agreement wherein petitioner
agreed to pay Angeles the bid price of the eight parcels of land within 20 days. The
parties then filed a Motion to Approve Compromise Agreement.4
On April 1, 2002, petitioner filed an Urgent Ex-Parte Motion to Recall Compromise
Agreement5 since the other property owner and other trustees of petitioner were not
consulted prior to the signing of the agreement. Angeles opposed the motion.
On May 2, 2002, Judge Calderon-Bargas issued an Order,6 which reads in part:
xxxx
Record shows that the Urgent Ex-Parte Motion to Recall Compromise Agreement and
Motion to Approve Compromise Agreement both failed to comply with Sec[s]. 4 and 5,
Rule 15 of the Civil Procedure. Both proceedings have no specific date of hearing. The
CIVIL PROCEDURE CASES Motions (Rule 12, 15 & 16)
reason why the Motion to Approve Compromise Agreement up to now has not yet been
acted upon was that it has no date of hearing.
WHEREFORE, the Urgent Ex-Parte Motion to Recall Compromise Agreement and the
Motion to [Approve] Compromise Agreement are considered mere scrap[s] of paper.
SO ORDERED.
In its Decision7 dated June 28, 2002, the trial court approved the Compromise
Agreement, as follows:
The parties, duly assisted by their respective counsels, submitted before this Court a
Compromise Agreement, as follows:
xxxx
[1.] The plaintiff shall pay to the defendant, Imelda Angeles, the amount of P5,500,000.00
representing the bid price for all the eight titles (TCT Nos. M-95417, 95419, 95418,
95420, 95421, 50889, 50890 and 50893) subject of the auction sale dated March 7, 2001
plus whatever taxes [and/or] assessments and expenses of the public auction as
prescribed under Act 3135, within twenty (20) days from the signing of this compromise
agreement. Said payment shall be considered full settlement of all obligations stated
under that Real Estate Mortgage, dated July 15, 1997and that Deed of Assumption of
Mortgage dated August 11, 1999.
2. Upon the payment of the afore-stated amount, the defendant shall make, sign,
execute and deliver to the plaintiff a Certificate of Deed of Redemption of all the above
titles, and shall surrender and deliver to the plaintiff all the eight titles mentioned above.
The defendant shall also make, sign, execute and deliver to the plaintiff a Deed of
Cancellation of Mortgage annotated at the back of all the eight titles above-mentioned.
The defendant shall also return to the plaintiff all checks issued by the plaintiff to the
defendant as payment of its obligations.
xxxx
Finding the Compromise Agreement quoted above to be not contrary to law, morals,
good customs and public policy, the same is hereby APPROVED.
xxxx
6

Angeles then moved for the issuance of a writ of execution. On September 9, 2002, the
trial court required petitioner to comment on the motion within ten (10) days. 8 On October
3, 2002, the trial court directed the Clerk of Court to issue a writ of execution. 9 On the
same date, the trial court received petitioners Motion for Extension of Time to File
Comment with Entry of Appearance which was denied on October 10, 2002. 10 Petitioner
then moved for reconsideration of the October 3, 2002 Order.
Petitioner came to the Court of Appeals via petition for certiorari alleging that Judge
Calderon-Bargas committed grave abuse of discretion amounting to lack or excess of
jurisdiction when: (1) she issued the October 3, 2002 and the October 10, 2002 Orders
even before petitioner could file its comment; (2) she granted the Motion for Issuance of
Writ of Execution although it lacked the requisite notice of hearing; and (3) the writ of
execution changed the tenor of the decision dated June 28, 2002.
In dismissing the petition, the appellate court ruled that petitioner was not deprived of
due process when the trial court issued the October 3, 2002 and the October 10, 2002
Orders since it was given sufficient time to file its comment. The appellate court did not
rule on the second and third issues after noting that petitioners motion for
reconsideration of the October 3, 2002 Order had not yet been resolved by the trial court.
It did not resolve the issues even after the trial court denied petitioners motion for
reconsideration on December 12, 2003, 11ratiocinating that the trial courts denial of
petitioners motion for reconsideration did not operate to reinstate the petition because at
the time it was filed, petitioner had no cause of action.
In the instant petition before us, petitioner alleges that the appellate court seriously erred:
I.
IN NOT HOLDING THAT PETITIONER WAS DENIED THE REQUISITE
PROCEDURAL DUE PROCESS WHEN PUBLIC RESPONDENT ISSUED THE
QUESTIONED ORDERS OF OCTOBER 3, 2002 AND OCTOBER 10, 2002
EVEN BEFORE PETITIONER COULD FILE ITS COMMENT AND IN FURTHER
ISSUING THE WRIT OF EXECUTION EVEN BEFORE THE RESOLUTION OF
THE PETITIONERS MOTION FOR RECONSIDERATION OF THE ORDER OF
OCTOBER 3, 2002.
II.
IN NOT HOLDING THAT PUBLIC RESPONDENT COMMITTED GRAVE
ABUSE OF DISCRETION WHEN IT GRANTED PRIVATE RESPONDENTS
CIVIL PROCEDURE CASES Motions (Rule 12, 15 & 16)
MOTION FOR ISSUANCE OF WRIT OF EXECUTION ALTHOUGH THE SAME
WAS FILED WITHOUT AN ACCOMPANYING NOTICE OF HEARING.
III.
IN NOT HOLDING THAT PUBLIC RESPONDENT COMMITTED GRAVE
ABUSE OF DISCRETION IN NOT HOLDING THAT EVEN ASSUMING THAT
THE DECISION RENDERED IN ACCORDANCE WITH THE COMPROMISE
AGREEMENT IS VALID AND BINDING UPON THE PETITIONER, THE WRIT
OF EXECUTION ISSUED PURSUANT THERETO IS VOID AS IT VARIES THE
TENOR OF THE JUDGMENT.12
Simply, the issues are whether the trial court seriously erred: (1) in issuing the October 3,
2002 and the October 10, 2002 Orders without awaiting petitioners comment; (2) in
granting the Motion for Issuance of Writ of Execution although it lacked the requisite
notice of hearing; and (3) in issuing the writ of execution since it varied the tenor of the
decision dated June 28, 2002.
Petitioner contends that it was denied due process when the trial court granted Angeless
Motion for Issuance of Writ of Execution on October 3, 2002, despite its receipt of
petitioners Motion for Extension of Time to File Comment with Entry of Appearance on
the same day. Further, Sheriff Sales T. Bisnar served upon petitioner the Notice to Settle
and/or Pay the Compromise Judgment Amount although its motion for reconsideration of
the October 3, 2002 Order was still pending. Petitioner also argues that Angeless Motion
for Issuance of Writ of Execution lacked the requisite notice of hearing. Finally, petitioner
claims that the writ of execution varied the tenor of the decision dated June 28, 2002.
Respondent Angeles counters that petitioner was not denied due process since it was
given ten (10) days to comment on the Motion for Issuance of Writ of Execution which
period had lapsed without petitioner filing any comment. Petitioner filed its Motion for
Extension of Time to File Comment with Entry of Appearance only after the reglementary
period had expired. Angeles further contends that the Motion for Issuance of Writ of
Execution contained the requisite notice of hearing. Finally, she argues that the writ of
execution did not vary the tenor of the decision dated June 28, 2002.
On the first issue, we note that in its September 9, 2002 Order, the trial court gave
petitioner ten (10) days to file its comment to Angeless Motion for Issuance of Writ of
Execution. While petitioner claims that it received the Order only on September 21, 2002,
Angeles counters that petitioner received it on September 12, 2002. We are more
inclined to believe Angeless allegation since the trial court itself declared in its Order
7

dated October 10, 2002 that the Order dated September 9, 2002 was personally served
upon petitioner on September 12, 2002. 13Thus, petitioner had until September 22, 2002
within which to file its comment or to request for an extension of time. Consequently,
petitioners motion for extension and comment were not seasonably filed and such
procedural lapse binds petitioner.
Anent the second issue, we have consistently held that a motion which does not meet
the requirements of Sections 4 and 5 of Rule 15 14 of the Rules of Court is considered a
worthless piece of paper, which the Clerk of Court has no right to receive and the trial
court has no authority to act upon. 15 Service of a copy of a motion containing a notice of
the time and the place of hearing of that motion is a mandatory requirement, and the
failure of movants to comply with these requirements renders their motions fatally
defective. However, there are exceptions to the strict application of this rule. These
exceptions are: (1) where a rigid application will result in a manifest failure or miscarriage
of justice especially if a party successfully shows that the alleged defect in the
questioned final and executory judgment is not apparent on its face or from the recitals
contained therein; (2) where the interest of substantial justice will be served; (3) where
the resolution of the motion is addressed solely to the sound and judicious discretion of
the court; and (4) where the injustice to the adverse party is not commensurate with the
degree of his thoughtlessness in not complying with the procedure prescribed. 16
A notice of hearing is an integral component of procedural due process to afford the
adverse parties a chance to be heard before a motion is resolved by the court. Through
such notice, the adverse party is given time to study and answer the arguments in the
motion.17 Records show that while Angeless Motion for Issuance of Writ of Execution
contained a notice of hearing, it did not particularly state the date and time of the hearing.
However, we still find that petitioner was not denied procedural due process. Upon
receiving the Motion for Issuance of Writ of Execution, the trial court issued an Order
dated September 9, 2002 giving petitioner ten (10) days to file its comment. The trial
court ruled on the motion only after the reglementary period to file comment lapsed.
Clearly, petitioner was given time to study and comment on the motion for which reason,
the very purpose of a notice of hearing had been achieved.
The notice requirement is not a ritual to be followed blindly. Procedural due process is
1awphi1
not based solely on a mechanical and literal application that renders any deviation
inexorably fatal. Instead, procedural rules are liberally construed to promote their
objective and to assist in obtaining a just, speedy and inexpensive determination of any
action and proceeding.18
CIVIL PROCEDURE CASES Motions (Rule 12, 15 & 16)
On the last issue, we note that the Compromise Agreement approved by the trial court in
its Decision dated June 28, 2002 merely provided that petitioner would pay Angeles the
bid price of P5,500,000, for the eight parcels of land subject of the auction sale, within
twenty (20) days. Upon payment, Angeles would execute a Certificate of Deed of
Redemption and a Deed of Cancellation of Mortgage, and surrender to petitioner the
titles to the eight parcels of land. Nevertheless, when the trial court issued the writ of
execution, the writ gave Sheriff Bisnar the option "to allow the consolidation of the
subject real properties in favor of the defendant Imelda Angeles."19
Undoubtedly, the writ of execution imposed upon petitioner an alternative obligation
which was not included or contemplated in the Compromise Agreement. While the
complaint originally sought to restrain Angeles from consolidating her ownership to the
foreclosed properties, that has been superseded by the Compromise Agreement.
Therefore, the writ of execution which directed Sheriff Bisnar to "cause the Register of
Deeds of Morong, Rizal, to allow the consolidation of the subject real properties in favor
of the defendant Imelda Angeles" is clearly erroneous because the judgment under
execution failed to provide for consolidation.
Because the writ of execution varied the terms of the judgment and exceeded them, it
had no validity. The writ of execution must conform to the judgment which is to be
executed, as it may not vary the terms of the judgment it seeks to enforce. Neither may it
go beyond the terms of the judgment sought to be executed. Where the execution is not
in harmony with the judgment which gives it life and exceeds it, it has pro tanto no
validity.20
WHEREFORE, the instant petition is PARTIALLY GRANTED. The Decision dated
November 28, 2003 and the Resolution dated May 26, 2004 of the Court of Appeals in
CA-G.R. SP No. 73965 are MODIFIED such that the writ of execution issued on October
11, 2002 by Judge Adelina Calderon-Bargas is declared NULL and VOID.
Let this case be REMANDED to the Regional Trial Court of Morong, Rizal, Branch 78,
which is hereby ORDERED to issue another writ of execution against petitioner KKK
Foundation, Inc., in conformity with the Decision dated June 28, 2002 of the trial court.
This is without prejudice to filing a new motion for consolidation by respondent Angeles.
No pronouncement as to costs.
SO ORDERED.
8
 CIVIL PROCEDURE CASES Motions (Rule 12, 15 & 16)
G.R. No. L-24238 November 28, 1980 responsive pleading and to clarify issues and aid the court In an orderly and expeditious
JOSE SANTOS, plaintiff-appellant, vs. LORENZO J. LIWAG, defendant-appellee. disposition tion in the case.

Appeal from the order of the Court of First Instance of Manila, dated October 17, 1964,
which dismissed the, complaint filed in Civil Case No. 57282, for failure of the plaintiff to
submit a bill of particulars within 10 days from notice thereof.
The record shows that on June 8, 1964 the appellant -Jose Santos filed a complaint
against Lorenzo J. Liwag with the Court of First Instance of Manila, docketed therein as
Civil Case No. 57282, seeking the annulment of certain documents, attached to the
complaint and marked as Annexes "A", "B", and "C", as having been executed by means
of misrepresentations, machination, false pretenses, threats, and other fraudulent
means, as well as for damages and costs. 1
Claiming that the allegations in the complaint are indefinite and uncertain, as well as
conflicting, the defendant filed a motion tion on July 4, 1964, asking the trial court that the
plaintiff be ordered to submit a more definite statement or bill of particulars on certain
allegations of the complaint, as well as the facts constituting the misrepresentations,
machinations, and frauds employed by the defendant in the execution of the documents
in question in order that he could be well informed of the charges filed against him, for
him to prepare an intelligent and proper pleading necessary and appropriate in the
premises. 2
The present action is one for the annulment of documents which have been allegedly
executed by reason of deceit, machination, false pretenses, misrepresentation, threats,
and other fraudulent means. Deceit, machination, false pretenses, misrepresentation,
and threats, however, are largely conclusions of law and mere allegations thereof without
a statement of the facts to which such terms have reference are not sufficient The
allegations must state the facts and circumstances from which the fraud, deceit,
machination, false pretenses, misrepresentation, and threats may be inferred as a
conclusions In his complaint, the appellant merely averred that all the documents sought
to be annulled were all executed through the use of deceits, machination, false
pretenses, misrepresentations, threats, and other fraudulent means without the
particular-facts on which alleged fraud, deceit, machination, or misrepresentations are
predicated. Hence, it was proper for the trial court to grant the defendant's motion for a
bill of particulars, and when the plaintiff failed to comply with the order, the trial court
correctly dismissed the complaint. 7
WHEREFORE, the judgment appealed from should be, as it is hereby, affirmed. Without
pronouncement as to costs in this instance. SO ORDERED.

The plaintiff opposed the motion saying that the allegations in his complaint are sufficient
and contain ultimate facts con- constituting his causes of action and that the subject of
the defendant's motion is evidentiary in nature. 3

The trial court, however, granted the motion and directed the plaintiff "to submit a bill of
particulars with respect to the paragraphs specified in defendant's motion", 4 and when
the plaintiff failed to comply with the order, the court, acting upon previous motion of the
defendant, 5 dismissed the complaint with costs against the plaintiff. 6 Hence, the present
appeal.

We find no merit in the appeal. The allowance of a motion for a more definite statement
or bill of particulars rests within the sound judicial discretion of the court and, as usual in
matters of a discretionary nature, the ruling of the trial court in that regard will not be
reversed unless there has been a palpable abuse of discretion or a clearly erroneous
order. In the instant case, the complaint is without doubt imperfectly drawn and suffers
from vagueness and generalization to enable the defendant properly to prepare a

9

G.R. No. L-15808 April 23, 1963
FAUSTA AGCANAS, JUAN MIGUEL, JUANITA MIGUEL, assisted by her husband
ULPIANO PASION, assisted by her husband JUAN PASCUAL, plaintiffs-
appellees, vs. BRUNO MERCADO and ANTONIO DASALLA, defendants-appellants.
Appeal by defendants from the Court of First Instance of Isabela on a question of law.
On November 25, 1956 plaintiffs filed this action to recover portions of a parcel of land in
Isabela, and damages. Under date of December 4, 1956 defendants filed a motion for a
bill of particulars, with notice of hearing on December 8, but since the motion was
actually received in court only on December 12 the court set it for hearing on December
22. On December 17, however, defendants filed a motion to dismiss the complaint, with a
prayer that consideration of their motion for a bill of particulars be held in abeyance
pending resolution of their motion to dismiss. On December 22, 1956, the date set by the
court for the hearing of the motion for a bill of particulars and by defendants for the
hearing of their motion to dismiss, the court issued an order postponing "consideration"
of both motions to December 29. On March 7, 1957 the court denied the motion to
dismiss and ordered defendants "to answer the complaint within the reglementary period
provided for by the Rules of Court." Hearing of the case on the merits was set for
October 29, 1957, notice of which was duly received by defendants. Defendants not
having filed their answer, plaintiffs, on October 17, 1957, moved to have them declared in
default. On the same day the court issued the order of default together with another
order commissioning the clerk of court to receive plaintiff's evidence. On October 21,
1957 defendants moved to cancel the hearing scheduled for October 29, on two grounds
one of which was that their motion for a bill of particulars had not yet been resolved. The
motion to cancel was set for hearing on October 26, 1957. When defendants arrived in
court on that day they learned that an order of default had been issued, so they
immediately filed a motion asking that the same be set aside that their pending motion
for a bill of particulars be resolved and that they be given a reasonable period thereafter
within which to file their answer to the complaint. On December 13, 1957 the court
denied the motion and rendered its decision in favor of plaintiffs and against defendants.
On January 4, 1958 it denied defendants' motion for reconsideration of the order of
denial. On January 24, defendants filed their record on appeal (to this Court from the
order of December 13, 1957), but as they subsequently filed a petition for relief from the
judgment by default, they asked that consideration and approval of their record on
appeal be held in abeyance until said petition had been resolved. The request was
granted. Defendant's petition for relief, which was filed on January 28, 1958, was denied
on March 21, as was also, on September 20, 1958 their motion for reconsideration of the
order of denial. On October 4, 1958 the court denied likewise their motion for a writ of
preliminary injunction to restrain execution of the judgment by default. Hence, this
appeal.
CIVIL PROCEDURE CASES Motions (Rule 12, 15 & 16)
Appellants' eighteen assignments of error may be reduced to a single proposition:
Whether or not upon denial of a defendants' motion to dismiss the reglementary period
within which to file an answer resumes running even though the motion for a bill of
particulars of the same defendants is still pending and unresolved. Both a motion to
dismiss and a motion for a bill of particulars interrupt the time to file a responsive
pleading. In the case of a motion to dismiss, the period starts running against as soon as
the movant receives a copy of the order of denial. 1 In the case of a motion for a bill of
particulars, the suspended period shall continue to run upon service on the movant of the
bill of particulars, if the motion is granted, or of the notice of its denial, but in any event he
shall have not less than five days within which to file his responsive pleading. 2 When
appellants filed a motion to dismiss they requested that resolution of their previous
motion for a bill of particulars be held in abeyance. This was but practical because if the
court had granted the motion to dismiss, there would have been no need for a bill of
particulars. Resolution of the motion for the purpose was necessary only in the event that
court should deny, as it did, the motion to dismiss, in which case the period to file an
answer remained suspended until the motion for a bill of particulars is denied or, if it is
granted, until the bill is served on the moving party.
Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted
and approved by this Honorable Court, without prejudice to the parties adducing other
evidence to prove their case not covered by this stipulation of facts. 1wph1.t
The lower court deemed appellants to have "tacitly waived their right to push through the
hearing of the motion for bill of particulars," because of their failure to set it for hearing or
to ask the clerk of court to calendar it after denial of the motion to dismiss. Appellants did
set the motion for hearing on December 8, 1956, although it was not heard on that day
because it arrived in court only on December 12. Thereafter they did not have to reset it,
as the clerk of court scheduled it for hearing on December 22, 1956. And on that day the
court issued an order that "the consideration of the motion to dismiss, as well as the bill
of particulars, is hereby postponed to December 29, 1956." As to whether or not both
motions were actually heard on December 29, does not appear of record. But heard or
not, the motions should be considered submitted, and it was the clear duty of the court to
resolve the motion for a bill of particulars, as it did the motion to dismiss. No action
having been taken thereon until the present, the period to answer has not yet expired.
The lower court, therefore, erred in declaring appellants in defaults and in taking all the
subsequent actions it did in the case.
The order of default issued and the decision rendered by the trial court are set aside and
the case is remanded for further proceedings, pursuant to the Rules. Costs against
plaintiffs-appellees.
10
CIVIL PROCEDURE CASES Motions (Rule 12, 15 & 16)

11

G.R. No. 106429 June 13, 1994
JOSELITA SALITA, petitioner, vs. HON. DELILAH MAGTOLIS, in her capacity as
Judge of the RTC, Quezon City, Br. 107, and ERWIN ESPINOSA, respondents.
Erwin Espinosa, 32, and Joselita Salita, 22, were married at the Roman Catholic Church
in Ermita, Manila, on 25 January 1986. A year later, their union turned sour. They
separated in fact in 1988. Subsequently, Erwin sued for annulment on the ground of
Joselitas psychological incapacity.
The issue before us however is not the scope nor even the interpretation of Art. 36 of the
Family Code. 1 Rather, the issue is the sufficiency of the allegations in the petition for
annulment of marriage and the subsequent bill of particulars filed in amplification of the
petition.
The petition for annulment was filed before the Regional Trial Court of Quezon City on 7
January 1992. Therein it is alleged that "[s]ometime in 1987, petitioner came to realize
that respondent was psychologically incapacitated to comply with the essential marital
obligations of their marriage, which incapacity existed at the time of the marriage
although the same became manifest only thereafter." 2 Dissatisfied with the allegation in
the petition, Joselita moved for a bill of particulars which the trial court
granted. 3 Subsequently, in his Bill of Particulars, Edwin specified that
. . . at the time of their marriage, respondent (Joselita Salita) was psychologically
incapacitated to comply with the essential marital obligations of their marriage in
that she was unable to understand and accept the demands made by his
profession that of a newly qualified Doctor of Medicine upon petitioners
time and efforts so that she frequently complained of his lack of attention to her
even to her mother, whose intervention caused petitioner to lose his job.
Still Joselita was not contented with the Bill of Particulars. She argued that the "assertion
(in the Bill of Particulars) is a statement of legal conclusion made by petitioners counsel
and not an averment of ultimate facts, as required by the Rules of Court, from which
such a conclusion may properly be inferred . . . ." 4 But finding the questioned Bill of
Particulars adequate, the trial court issued an order upholding its sufficiency and directing
Joselita to file her responsive pleading.
Joselita was not convinced. She filed a petition for certiorari with us. However, we
referred her petition to the Court of Appeals for resolution.
On 21 July 1992, the Court of Appeals denied due course to her petition thus
CIVIL PROCEDURE CASES Motions (Rule 12, 15 & 16)
In the case under consideration, Espinosa has amplified Salitas alleged
psychological incapacity in his bill of particulars . . .
In our view, the aforesaid specification more than satisfies the Rules requirement
that a complaint must allege the ultimate facts constituting a plaintiffs cause of
action. To require more details thereof, to insist on a specification of Salitas
particular conduct or behavior with the corresponding circumstances of time,
place and person indicating her alleged psychological incapacity would be to ask
for information on evidentiary matters. To obtain evidentiary details, Salita may
avail herself of the different modes of discovery provided by the Rules of Court
(Rules 24 to 28).
Whether Espinosas averments in his bill of particulars constitute psychological
incapacity in the contemplation of the Family Code is a question that may be
resolved in a motion to dismiss or after trial on the merits of the case, not in a
motion for bill of particulars. And certainly, that matter cannot be resolved in the
present petition. 5
Hence, the instant petition for review on certiorari filed by Joselita Salita questioning the
Resolution of the Court of Appeals denying due course to her petition.
Petitioner insists that the allegations in the Bill of Particulars constitute a legal
conclusion, not an averment of facts, and fail to point out the specific essential marital
obligations she allegedly was not able to perform, and thus render the Bill of Particulars
insufficient if not irrelevant to her husbands cause of action. She rationalizes that her
insistence on the specification of her particular conduct or behavior with the
corresponding circumstances of time, place and person does not call for information on
evidentiary matters because without these details she cannot adequately and intelligently
prepare her answer to the petition.
Private respondent on the other hand believes that his allegations in the Bill of
Particulars constitute the ultimate facts which the Rules of Court requires at this point. He
defines ultimate facts as
. . . important and substantial facts which either directly form the basis of the
primary right and duty, or which directly make upon the wrongful acts or
omissions of the defendant. The term does not refer to the details of probative
matter or particulars of evidence by which these material elements are to be
established. It refers to principal, determinate facts upon the existence of which
the entire cause of action rests. 6
12

Ultimate facts are conclusions drawn from intermediate and evidentiary facts, or
allegations of mixed law and fact; they are conclusions from reflection and natural
reasoning on evidentiary fact. The ultimate facts which are to be pleaded are the
issuable, constitutive, or traversible facts essential to the statement of the cause of
action; the facts which the evidence on the trial will prove, and not the evidence
which will be required to prove the existence of those facts . . . 7
Private respondent further argues that "[c]onclusions of law and evidentiary matters need
not be stated in the complaint. The rules of pleading limit the statement of the cause of
action only to such operative facts as would give rise to the right of action of the plaintiff
to obtain relief against the wrongdoer. The details of probative matter or particulars of
evidence, statements of law, inferences and arguments need not be stated." 8
In a nutshell, the ultimate question is whether the Bill of Particulars submitted by herein
respondent is of sufficient definiteness or particularity as to enable herein petitioner to
properly prepare her responsive pleading or for trial.
A complaint only needs to state the "ultimate facts constituting the plaintiffs cause or
causes of action." 9 Ultimate facts has been defined as "those facts which the expected
evidence will support." 10 As stated by private respondent, "[t]he term does not refer to the
details of probative matter or particulars of evidence by which these material elements are to
be established." It refers to "the facts which the evidence on the trial will prove, and not the
evidence which will be required to prove the existence of those facts." And a motion for bill of
particulars will not be granted if the complaint, while not very definite, nonetheless already
states a sufficient cause of action. 11 A motion for bill of particulars may not call for matters
which should form part of the proof of the complaint upon trial. Such information may be
obtained by other means. 12
We sustain the view of respondent Court of Appeals that the Bill of Particulars filed by
private respondent is sufficient to state a cause of action, and to require more details
from private respondent would be to ask for information on evidentiary matters. Indeed,
petitioner has already been adequately apprised of private respondents cause of action
against her thus
. . . . (she) was psychologically incapacitated to comply with the essential marital
obligations of their marriage in that she was unable to understand and accept the
demands made by his profession that of a newly qualified Doctor of Medicine
upon petitioners time and efforts so that she frequently complained of his lack
of attention to her even to her mother, whose intervention caused petitioner to
lose his job.
CIVIL PROCEDURE CASES Motions (Rule 12, 15 & 16)
On the basis of the aforequoted allegations, it is evident that petitioner can already
prepare her responsive pleading or for trial. Private respondent has already alleged that
"she (petitioner) was unable to understand and accept the demands made by his
profession . . . upon his time and efforts . . . " Certainly, she can respond to this. To
demand for more details would indeed be asking for information on evidentiary facts
facts necessary to prove essential or ultimate facts. 13 For sure, the additional facts called
for by petitioner regarding her particular acts or omissions would be evidentiary, and to obtain
evidentiary matters is not the function of a motion for bill of particulars. 14
We distinguish the instant case from Tantuico, Jr. v. Republic 15 where we said
Furthermore, the particulars prayed for such as names of persons, names of
corporations, dates, amounts involved, a specification of property for
identification purposes, the particular transactions involving withdrawals and
disbursements, and a statement of other material facts as would support the
conclusions and inferences in the complaint, are not evidentiary in nature. On the
contrary, those particulars are material facts that should be clearly and definitely
averred in the complaint in order that the defendant may, in fairness, be informed
of the claims made against him to the end that he may be prepared to meet the
issues at the trial.
The aforementioned pronouncement cannot apply to the instant case. That ruling
involves alleged "misappropriation and theft of public funds, plunder of the nations
wealth, extortion, blackmail, bribery, embezzlement, and other acts of corruption,
betrayal of public trust and brazen abuse of power." The respondents therein pray for
reconveyance, reversion, accounting, restitution and damages. There, the alleged illicit
acts should be fully documented. The instant case, on the other hand, concerns marital
relationship. It would be unreasonable, if not unfeeling, to document each and every
circumstance of marital disagreement. True, the complaining spouse will have to prove
his case, but that will not come until trial begins.
Consequently, we have no other recourse but to order the immediate resumption of the
annulment proceeding which have already been delayed for more than two years now,
even before it could reach its trial stage. Whether petitioner is psychologically
incapacitated should be immediately determined. There is no point in unreasonably
delaying the resolution of the petition and prolonging the agony of the wedded couple
who after coming out from a storm still have the right to a renewed blissful life either
alone or in the company of each other.
A word on Art. 36 of the Family Code. 16 We do not see the need to define or limit the scope
of the provision. Not in this case, at least. For, we are not called upon to do so, the actual
13
 CIVIL PROCEDURE CASES Motions (Rule 12, 15 & 16)
controversy being the sufficiency of the bill of particulars. To interpret the provision at this
juncture would be to give an obiter dictum which is ill-timed. Besides, it appears that petitioner
in her memorandum has demonstrated a good grasp of what Art. 36 actually covers. Suffice it
to say that Mme. Justice Sempio-Diy, formerly of the Court of Appeals and a member of the
Civil Code Revision Committee that drafted the Family code, explains

The Committee did not give any examples of psychological incapacity for fear
that the giving of examples would limit the applicability of the provision under the
principle of ejusdem generis. Rather, the Committee would like the judge to
interpret the provision on a case-to-case basis, guided by experience, the
findings of experts and researchers in psychological disciplines, and by decisions
of church tribunals which, although not binding on the civil courts, may be given
persuasive effect since the provision was taken from Canon Law. 17

WHEREFORE, there being no reversible error, the instant petition is DENIED and the
questioned Resolution of respondent Court of Appeals dated 21 July 1992 is AFFIRMED.

SO ORDERED.

14

G.R. No. L-45107 November 11, 1991
BENEDICTO RAMOS, petitioner, vs. HON. ELVIRO L. PERALTA, Presiding Judge,
Branch XVII, Court of First Instance of Manila, SPOUSES JUVENCIO ORTANEZ and
JULIANA S. ORTANEZ, MINDANAO INSURANCE CO., INC. and P. R. ROMAN,
INC., respondents.
Put in issue in this petition for review on certiorari is the propriety of the dismissal by the
then Court of First Instance of (CFI) of Manila, Branch XVII of petitioner's action for
consignation of the sum of P70,000.00 representing advance rentals for the 101-hectare
Salgado fishpond located in Bo. Balut, Pilar, Bataan.
Petitioner started occupying the Salgado fishpond in 1964 by virtue of a lease contract
executed in his favor by private respondents spouses Juvencio and Juliana Ortanez. The
original lease for a term of five (5) years from January 1, 1964 to January 1, 1990, was
renewed several times, the last renewal being on June 28, 1974 under a "Kasunduan sa
Pag-upa" for a period of three (3) years starting January 1, 1975 to December 31, 1977.
Unknown to petitioner, title 1 to said property was in the name of Philippine International
Surety Co., Inc., a corporation founded, organized and 99.5%-owned by the Salgado
spouses. Later renamed Mindanao Insurance Co., Inc., 2 said corporation was placed
under receivership and liquidation on June 20, 1968 in Civil Case No. Q-10664 of the
then CFI of Rizal, Branch IV, Quezon City, upon application of Insurance Commissioner
Gregoria Cruz-Ansaldo who was appointed receiver.
Thereafter on February 23, 1976, respondent P. R. Roman, Inc. purchased from
Mindanao Insurance the Salgado fishpond for P950,000.00. The deed of sale was signed
by the receiver and duly approved by the liquidation court.
Apparently due to this development, the spouses Ortanez refused to accept from
petitioner the advance rentals on the fishpond due on March 15, 1976 in the amount of
P30,000.00.
On or about May 1, 1976, petitioner received a letter from Don Pablo R. Roman
informing him of the latter's acquisition of the fishpond and intention to take possession
thereof on May 16, 1976. In his letter-reply, petitioner reminded Mr. Roman of his lease
contract over the fishpond and refused to consent to the intended take over.
Notwithstanding petitioner's objection, P. R. Roman, Inc. took over possession of the
fishpond.
CIVIL PROCEDURE CASES Motions (Rule 12, 15 & 16)
On August 2, 1976, petitioner filed before the CFI of Manila the aforesaid complaint,
docketed as Civil Case No. 103647, 3 against private respondents Juvencio and Juliana
Ortanez, Mindanao Insurance and P. R. Roman, Inc. for consignation of the sum of
P70,000.00 representing advance rentals on the fishpond in the amounts of P30,000.00
and P40,000.00 respectively due on March 15, 1976 and June 15, 1976, which he had
previously tendered to, but refused by the spouses Ortanez and Pablo Roman.
P. R. Roman, Inc. filed a motion to dismiss on the grounds that venue was improperly
laid, the complaint states no cause of action and the court has no jurisdiction over the
subject of the action or suit. In its motion to dismiss, P. R. Roman, Inc. cited the
pendency before the then CFI of Bataan of Civil Case No 4102 instituted by P.R. Roman,
Inc. against petitioner Benedicto Ramos on August 13, 1976 to quiet its title over the
Salgado fishpond.
On August 27, 1976, respondent CFI of Manila issued an order 4 dismissing Civil Case
No. 103647, stating in part:
Without discussing in detail the grounds mentioned above, the Court really sees
that this case should be dismissed not only insofar as against P. R. Roman, Inc.
but also as against the other defendants mentioned above for the reason,
principally, that there is already a case pending between the same parties and for
the same cause in Civil Case No. 4102 of Branch II of the Court of First Instance
of Bataan, entitled P. R. Roman, Inc. vs. Benedicto Roman, which is precisely for
the ownership of the subject matter of the property allegedly leased to the plaintiff
herein (Exhibit "A"-Motion). In the said case, the defendant therein, Benedicto
Ramos, who is the plaintiff in the case at bar, filed a motion for leave to file a
third-party complaint against the spouses surnamed Ortanez and the Mindanao
Insurance Company Inc. All the issues respecting the fishpond, including the
lease contract, are necessarily involved in the case pending now in Bataan.
Aside from the above, the Court cannot decide this case because it cannot pre-
empt the Court of Bataan on whether or nor the P. R. Roman, Inc. is already the
owner because if it finds that the said defendant P. R. Roman, Inc. is really the
owner of the fishpond, there is no more lease for which rentals are to be paid.
Petitioner moved for reconsideration, but was unsuccessful, the court a quo, standing
"pat on its previous order and reiterat(ing) its dismissal of the case, without costs." 5
Hence this petition anchored on the following ascribed errors of law: 6
15

1. The respondent court erred in not holding that the only issue in consignation of
funds is whether the defendant is willing to accept the proffered payment or not.
2. The respondent court erred in not holding that the prerogative of choosing the
proper venue belongs to the plaintiff.
3. The respondent court erred in holding that the subsequent filing of Civil Case
No. 4102 before the Court of First Instance of Bataan is a bar to the prosecution
of Civil Case No. 103647 before it.
Petitioner contends that the Bataan quieting-of-title Civil Case No. 4102 cannot serve as
a bar to his Manila consignation Civil Case No. 103647 because they involve different
issues. Civil Case No. 4102 deals with the question of ownership while the only issue
involved in his consignation case is whether or not the defendant is willing to accept the
proffered payment. In fact, petitioner posits, the action to quiet title is a useless futile
exercise as he does not question P. R. Roman Inc.'s ownership of the fishpond under
consideration, but merely wishes to assert his leasehold and possessory rights over said
property under the "Kasunduan sa Pag-upa." He further contends that compelling him to
litigate before the Bataan court would render nugatory his right as a plaintiff to choose
the venue of his action. Besides, Civil Case No. 103647 was filed on August 2, 1976,
ahead of Civil Case No. 4102 which was filed on a much later date, August 13, 1976,
after the Manila CFI had already acquired jurisdiction over Civil Case No. 103647.
Private respondents counter that the view taken by petitioner of the Manila consignation
case is quite limited and bookish, because while it may be true that theoretically, the
main issue involved in a consignation case is whether or not the defendant is willing to
accept the proffered payment, in the consignation case brought by petitioner, other
issues were pleaded by petitioner himself, such as the validity and binding effect of the
lease contract and the existence of the supposed obligor-obligee relationship. They
further contend that a plaintiffs right of choice of venue is not absolute, but must
invariably how to the dismissal of the case because of litis pendentia which, in refutation
of petitioner's argument, does not require that there is a prior pending action, merely that
there is a pending action.
We find for respondents.
Under the rules and jurisprudence, for litis pendentia to be invoked as a ground for the
dismissal of an action, the concurrence of the following requisites is necessary: (a)
Identity of parties or at least such as represent the same interest in both actions; (b)
Identity of rights asserted and relief prayed for, the relief being founded on the same
CIVIL PROCEDURE CASES Motions (Rule 12, 15 & 16)
facts; and (c) The identity in the two cases should be such that the judgment that may be
rendered in one would, regardless of which party is successful, amount to res judicata in
the other. 7
These requisites are present in the case at bar. It is worthwhile mentioning that in his
basic petition for review, one of the assigned errors of petitioner is that the respondent
court erred in not holding that the parties in Civil Case No. 4102 are not the same as the
parties in Civil Case No. 103647. 8 However, in his brief, no further mention of this
assigned error was made; a clear indication of petitioner's admission of the identity of
parties in Civil Case No. 4102 and Civil Case No. 103647, particularly as he filed a third
party complaint in Civil Case No. 4102 against the spouses Ortanez and Mindanao
Insurance.
Anent the second element, we agree with private respondents' observation that
petitioner's approach to his consignation case is quite constricted. His contention that the
only issue in a consignation case is whether or not the defendant is willing to accept the
proffered payment is true only where there is no controversy with respect to the
obligation sought to be discharged by such payment. His consignation case, however, is
not as simple. While ostensibly, the immediate relief sought for in his consignation case
is to compel therein defendants to accept his advance rentals, the ultimate purpose of
such action is to compel the new owner of the fishpond to recognize his leasehold rights
and right of occupation. In the last analysis, therefore, the issue involved in Civil Case
No. 103647 is the right of possession over the fishpond intertwined with the validity and
effectivity of the lease contract.
This is the same issue involved in Civil Case No. 4102. Although an action for quieting of
title refers to ownership, P. R. Roman, Inc. in its complaint 9 in Civil Case No. 4102
alleged:
5. There is a cloud on the aforesaid titles of plaintiff on the said agricultural land,
marked Annexes "A", "B" and "C" hereof, as well as on its right of possession
over that real property by reason of a certain "Kasunduan sa Pagupa" (Contract
of Lease) dated June 28, 1974 executed by and between the spouses Jovencio
Ortanez and Juliana S. Ortanez purportedly as "may-ari/Nagpapaupa"
(owner/lessor) and the defendant as lessee, which instrument is apparently valid
or effective but in truth and in fact invalid, ineffective, voidable or unenforceable,
and is prejudicial to the said titles of plaintiff as well as to its right of possession
over the same fishpond/agricultural land in Barrio Balut, Pilar, Bataan.
16
 CIVIL PROCEDURE CASES Motions (Rule 12, 15 & 16)
Thus, while the respondent court in the assailed order of dismissal dated August 27, court, and bringing his consignation case before the same court would actually save him
1976 described Civil Case No. 4102 as "precisely for the ownership of the subject matter time, effort and litigation expenses.
of the property allegedly leased to the plaintiff herein," 10 its order dated October 22,
1976 denying petitioner's motion for reconsideration, more perceptively stated: 11 Finally, the rule on litis pendentia does not require that the later case should yield to the
earlier case. What is required merely is that there be another pending action, not
In Civil Case No. 4102 of the Court of First Instance of Bataan, entitled P. R. a prior pending action. Considering the broader scope of inquiry involved in Civil Case
Roman, Inc. vs. Benedicto Ramos one of the principal issues is the possession No. 4102 and the location of the property involved, no error was committed by the lower
of the fishpond subject matter of the lease supposed rents of which are supposed court in deferring to the Bataan court's jurisdiction.
to be consignated in the instant case, plaintiff P. R. Roman, Inc. there, claiming to
be entitled to the possession of said property as owner under a certificate of title WHEREFORE, the assailed decision dated August 27, 1976 of the then Court of First
and defendant Benedicto Ramos, plaintiff here, anchoring his claim of Instance of Manila, Branch XVII, is AFFIRMED in toto. This decision is immediately
possession upon his lease with the Ortanez spouses against whom, on his executory, with costs against petitioner.
motion, he filed a third party complaint in which he prayed in the alternative, that
should he lose possession of the fishpond in favor of P. R. Roman, Inc., the SO ORDERED.
Ortanezes should be condemned to reimburse him the rentals he has already
paid for the unexpired portion of the lease. The issue of whether or not the lease
subsists even as regards P. R. Roman, Inc., for it is the view of Ramos that it
bought the property with knowledge of the lease, is squarely planted in the case
before the Court of First Instance of Bataan, and, consequently, the more
appropriate court with which rents are to be consignated. . . .

That whatever decision may be handed down in Civil Case No. 4102 would
constitute res judicata in Civil Case No. 103647 is beyond cavil. Should the Bataan court
rule that the lease contract is valid and effective against P. R. Roman, Inc., the petitioner
can compel it to accept his proffered payment of rentals; otherwise, he may not do so.

Petitioner next contends that the dismissal of Civil Case No. 103647 deprived him of his
right to choose the venue of his action. Verily, the rules on the venue of personal actions
are laid down generally for the convenience of the plaintiff and his witnesses. But, as
observed by private respondents, this right given to the plaintiff is not immutable. It must
yield to the greater interest of the orderly administration of justice, which as in this case,
may call for the dismissal of an action on the basis of litis pendentia to obviate the
possibility of conflicting decisions being rendered by two different courts. 12

As private respondents would put it, "(T)he Rules of Court are not perfect. It does not
pretend to be able to make everyone happy simultaneously or consecutively or all the
time. Even the Rules of Court has hierarchy of values; thus, the choice of venue may
bow to dismissal of the case because of litis pendentia. 13 At any rate, petitioner cannot
complain of any inconvenience arising from the dismissal of Civil Case No. 103647.
Being the defendant in Civil Case No. 4102, he cannot but litigate before the Bataan

17

G.R. No. L-30523 April 22, 1977
LEE BUN TING and ANG CHIA petitioners, vs. HON. JOSE A. ALIGAEN Judge of the
Court of First Instance, of Capiz, 11th Judicial District, Branch II; ATTY. ANTONIO
D. AMOSIN, as court-appointed Receiver; RAFAEL A. DINGLASAN, FRANCISCO A.
DINGLASAN, CARMEN A. DINGLASAN, RAMON A. DINGLASAN, LOURDES A.
DINGLASAN, MERCEDES A. DINGLASAN, CONCEPCION A, DINGLASAN,
MARIANO A. DINGLASAN, JOSE A. DINGLASAN, LORETO A. DINGLASAN, RIZAL
A. DINGLASAN, JIMMY DINGLASAN, and JESSE DINGLASAN, respondents.
Petition for certiorari to annul the Orders of respondent court dated October 10, 1968 and
November 10, 1968 and other related Orders in Civil Case No. V-3064, entitled Rafael A.
Dinglasan, et al., vs. Lee Bun Ting, et al., with prayer for the issuance of writ of
preliminary injunction. The antecedent facts are as follows:
On June 27, 1956, this Court rendered judgment in G. R. No. L-5996, entitled Rafael
Dinglasan, et al. vs. Lee Bun Ting, et al., 1 In that case, We found that:
In the month of March, 1936, petitioners-appellants sold to Lee Liong, a Chinese
citizen, predecessor in interest of respondents-appellees, a parcel of land
situated on the corner of Roxas Avenue and Pavia Street, Capiz (now Roxas
City), Capiz, designated as lot 398 and covered by Original Certificate of Title No.
3389. The cost was P6,000.00 and soon after the sale Lee Liong constructed
thereon a concrete building which he used as a place for his lumber business
and in part as residence for himself and family. Petitioners had contended that
the sale was a conditional sale, or one with the right of repurchase during the last
years of a ten-year period, but the trial court and the Court of Appeals found that
the sale was an absolute one. Another contention of the petitioners-appellants is
that the sale is null and void as it was made in violation of the provision contained
in the Constitution (Article XIII, section 5), but the Court of Appeals found that the
purchaser was not aware of the constitutional prohibition while petitioners-
appellants were because the negotiations for the sale were conducted with the
knowledge and direct intervention of Judge Rafael Dinglasan, one of the
plaintiffs, who was at that time an assistant attorney in the Department of Justice.
... (P. 42-Q)
In reply to the contention of appellants therein that as the sale to Lee Liong is prohibited
by the Constitution, title to the land did not pass to said alien because the sale did not
produce any juridical effect in his favor, and that the constitutional prohibition should be
deemed self-executing in character in order to give effect to the constitutional mandate,
this Court said:
CIVIL PROCEDURE CASES Motions (Rule 12, 15 & 16)
... In answer we state that granting the sale to be null and void and can not give
title to the vendee, it does not n necessarily follow therefrom that the title
remained in the vendor, who had also violated the constitutional prohibition, or
that he (vendor) has the right to recover the title of which he has divested himself
by his act in ignoring the prohibition. In such contingency another principle of law
sets in to bar to equally guilty vendor from recovering the title which he had
voluntarily conveyed for a consideration, that of pan delicto We have applied this
principle as a bar to the present action in a series of cases thus:
xxx xxx xxx
We can, therefore, say that even if the plaintiffs can still invoke the Constitution,
or the doctrine in the Krivenko case, to set aside the sale in question, they are
now prevented from doing so if their purpose is to recover the lands that they
have voluntarily parted with, because of their guilty knowledge that what they
were doing was in violation of the Constitution. They cannot escape the law. As
this Court well said: A party to an illegal contract cannot come into a court of law
and ask to have his illegal objects carried out. The law will not aid either party to
an illegal agreement; it leaves the parties where it finds them. The rule is
expressed in the maxims: Ex dolo malo non oritur actio and In pari delicto potior
eat conditio defendentis ....
It is not necessary for us to re-examine the doctrine laid down by us in the above
cases. We must add in justification of the adoption of the doctrine that the scope
of our power and authority is to interpret the law merely, leaving to the proper
coordinate body the function of laying down the policy that should be followed in
relation to conveyances in violation of the constitutional prohibition and in
implementing said policy. The situation of these prohibited conveyances is not
different from that of homestead sold within five yearn from and after the
issuance of the patent, (Section 118, C.A. 141, otherwise known as the Public
Land Law), for which situation the legislature has adopted the policy, not of
returning the homestead sold to the original homesteader but of forfeiting the
homestead and returning it to the public domain again subject to disposition in
accordance with law. (Section 124, Id.)
The doctrine of in pari delicto bars petitioners-appellants from recovering the title
to the property in question and renders unnecessary the consideration of the
other arguments presented in appellants brief.
18

There is one other cause why petitioner' remedy cannot be entertained, that is
the prescription of the action. As the sale occurred in March, 1936, more than ten
years had already elapsed from the time the cause of action accrued when the
action was filed (1948). (pp. 431-432)
Noting the absence of policy governing lands sold to aliens in violation of the
constitutional prohibition, We further said:
We take this occasion to call the attention of the legislature to the absence of a
law or policy on sales in violation of the Constitution; this Court would have filled
the void were we not aware of the fact that the matter falls beyond the scope of
oar authority and properly belongs to a co-ordinate power. (P. 432)
Accordingly, the petition in the foregoing case was denied.
Twelve (12) years later, on the basis of the decision of this Court in Philippine Banking
Corporation vs. Lui She, 2private respondents Rafael A. Dinglasan, et al. filed a complaint on
July 1, 1968 for the recovery of the same parcel of land subject matter of the first-mentioned
case. Said complaint was docketed as Civil Case No. V-3064 before respondent court.
Private respondents (plaintiffs before the court a quo) reiterated their contention that the sale
made to Lee Liong, predecessor-in-interest of petitioners (defendants a quo), was null and
void for being violative of the Constitution, and prayed that plaintiffs be declared as the
rightful and legal owners of the property in question; that defendants be ordered to vacate the
premises, to surrender possession thereof to plaintiffs and to receive the amount of
P6,000.00 from the plaintiffs as restitution of the purchase price; and that defendants be
ordered to pay damages to the plaintiffs in the amount of P2,000.000 a month from the time
of the filing of the complaint until the property is returned to them, as well as the costs of suit.
A motion to dismiss, dated September 23, 1968, was filed by defendants- petitioners on
the ground of res judicata, alleging that the decision in the case of "Rafael Dinglagan, et
al. vs. Lee Bun Ting, et al.", supra, promulgated on June 27, 1956, has definitely settled
the issues between the parties. An opposition thereto was filed by plaintiffs, with the
averment that the decision in the prior case "cannot be pleaded in bar of the instant
action because of new or additional facts or grounds of recovery and because of change
of law or jurisprudence. 3 In support of the change in jurisprudence asserted, the decision of
this Court in Philippine Banking Corporation vs. Lui She, supra, was advanced, upon the
contention that said decision warrants a reopening of the case and the return of the parcel of
land involved to the plaintiffs, A reply to the opposition was filed by defendants by registered
mall on October 16, 1968, alleging that the decision in Philippine Banking Corporation vs. Lui
She, which was promulgated in 1967, "cannot affect the outcome of the instant case. Said
1967 decision cannot be applied to the instant case where there had been already a final and
CIVIL PROCEDURE CASES Motions (Rule 12, 15 & 16)
conclusive determination some twelve years earlier. While a doctrine laid down in previous
cases may be overruled, the previous cases themselves cannot thereby be reopened. The
doctrine may be changed for future cases but it cannot reach back into the past and overturn
finally settled cases. 4
However, on October 10, 1968, before the filing of the above reply, respondent court had
issued an Order denying the motion to dismiss. The court said:
A copy of the decision rendered in the case of Rafael Dinglasan, et al. vs. Lee
Bun Ting, et al., G. R. No. L-5996 is attached to the motion to dismiss.
In that case, the Supreme Court ruled that both parties violated the constitutional
prohibition (Article XIII, see. 9) for the purchaser was an alien and prohibited to
acquire residential lot while the vendors, Filipino citizens, can not also recover
the property for having violated the constitutional prohibition, under the principle
of pari delicto. The vendee cannot own the property, neither ran the vendor
recover what he sold.
To fill the void, the Supreme Court pointed out that the coordinate body
Congress of the Philippines can pass remedial legislation.
But Congress failed to act, Neither was there any proceeding after almost twenty
years for escheat or reversion instituted by the Office of the Solicitor General
after the Krivenko decision which prohibits the transfer to aliens of any private
agricultural land including residential lands whatever its origin might have been.
But the Supreme Court took a decisive step and in bold relief dispelled darkening
clouds in the case of Philippine Banking Corporations vs. Lui She, promulgated
September 12, 1967, ... .
The concurring opinion of Justice Fernando is very enlightening and
elucidating. ...
The Court wishes to refer to the concurring opinion of Justice Fernando as an
additional authority supporting the herein order.
PREMISES CONSIDERED, the Court finds the motion to dismiss unmeritrious
and holds that the same be as it is hereby DENIED. 5
19

A motion for reconsideration of the foregoing Order was filed by defendants, alleging that
their reply to plaintiffs' opposition to the motion to dismiss was not even considered by
the court a quo because the Order was issued before said reply Could reach the court,
Further, it was asserted that the Philippine Banking Corporation vs. Lui She case had the
effect of annulling and setting aside only the contracts subject matter thereof "and no
other contracts, certainly not contracts outside the issues in said judgment as that in the
instant case", and of ordering the return only of the lands involved in said case, and not
the land subject of the present action. Moreover, it was averred that "Nowhere in the
majority opinion nor in the concurring opinion in said decision of Philippine Banking
Corporation vs. Lui She does there appear any statement which would have the effect of
reopening and changing previously adjudicated rights of parties and finally settled cases"
and that the principle enunciated in such case "should apply after, not on or before,
September 12, 1967". The motion for reconsideration was found to have not been well
taken and, consequently, was denied by respondent court on November 9, 1968.
Defendants were given ten (10) days from receipt of the Order within which to file their
answer to the complaint, Which defendants complied with.
Defendants' answer, dated December 5, 1968, contained the following allegations,
among others:
(a) The sale of the parcel of land involved was made in 1935 before the
promulgation of the Constitution.
(b) Said conveyance ' as an absolute sale, not subject to any right or
repurchase ...
(c) Upon the purchase of the said parcel of land by the deceased Lee Liong, he
and defendant Ang Chia constructed thereon a camarin for lumber business and
later a two-storey five door accessoria with an assessed-valuation of P35,000.00,
which said improvements were destroyed during the Japanese entry into the
municipality of Capiz in April 1942, thereafter, the same improvements were
rebuilt.
(d) In July 1947, the said Lee Liong being already deceased, defendants as his
legal heirs entered into an extrajudicial settlement of said property, there being
no creditors or other heirs, and by virtue of said extra-judicial settlement,
approximately two-thirds of said property was adjudicated to defendant Ang Chia
and Lee Bing Hoo as co-owners and the remaining one-third to defendant Lee
Bun Ting
CIVIL PROCEDURE CASES Motions (Rule 12, 15 & 16)
(e) The deceased Lee Liong and defendants have been declaring and paying
real estate taxes on the said property since 1935 and up to the present year.
xxx xxx xxx
In addition to the foregoing, defendants reiterated their defense of res judicata, on the
basis of the decision of the Supreme Court of June 27, 1956. It was, therefore, prayed
that the complaint be dismissed, with counterclaim for attorney's fees and expenses of
litigation or, in case of adverse judgment, that plaintiffs be ordered to pay the reasonable
equivalent of the value of the property at the time of the restoration, plus reimbursement
of improvements thereon.
A reply and answer to the counterclaim, dated December 14, 1968, was filed by plaintiffs.
On March 31, 1969, respondent court issued an Order denying a motion filed by
petitioners for simplification of the issues and for the striking out from the records of the
declaration of Rafael Dinglasan under the Survivorship Disqualification Rule. A motion for
reconsideration of the foregoing Order was denied on May 7, 1969.
During the pendency of the trial, plaintiffs filed a petition for the appointment of a receiver
"to receive, collect and hold in trust all income of the property in the form of monthly
rentals of P2,000.00", on the premise that defendants have no other visible property
which will answer for the payment of said rentals. This petition was opposed by
defendants, alleging that plaintiffs will not suffer any irreparable injury or grave damage if
the petition for receivership is not granted, particularly as defendants are solvent and
further considering that defendants have a building on the parcel of land, the value of
which must likewise be considered before plaintiffs can be awarded possession of the
land. The matter of receivership was heard by respondent court and on May 17, 1969, it
issued an Order appointing respondent Atty. Antonio D. Amosin, Deputy Clerk of Court,
as receiver with instructions to take immediate possession of the property in litigation and
to preserve, administer and dispose of the same in accordance with law and order of the
court, upon the posting of a bond in the amount of P500.00. On May 17, 1969, the
appointed receiver took his oath. Hence, the instant petition.
Petitioners herein pray that judgment be rendered annulling and setting aside respondent
court's complained of Orders (rated October 10, 1968. November 9, 1968, March 31,
1969, May 7, 1969 and May 17, 1969, and ordering the dismissal of Civil Case no. L-
3064 of respondent court on the ground of res judicata Petitioners further prayed for the
issuance of a writ of preliminary injunction to restrain respondent court from proceeding
with the scheduled hearings of the case, and respondent receiver from executing the
order to take immediate possession of the property in litigation.
20

On June 16, 1969, this Court issued the writ of preliminary injunction prayed for,
restraining respondent court from continuing with the scheduled trial of the case and
respondent receiver from executing the order to take immediate possession of the
property in litigation and/or otherwise discharging or performing his function as receiver.
The issue posed before Us is whether the questions which were decided in Rafael
Dinglagan, et al. vs. Lee Bun Ting et al., supra, could still be relitigated in Civil Case No.
V-3064, in view of the subsequent decision of this Court in Philippine Banking
Corporation vs. Lui She, supra.
We resolve the issue in the negative. The decision of this Court in G. R. No. L-
5996, "Rafael Dinglasan, et al. vs. Lee Bun Ting, et al." constitutes a bar to Civil Case
No. V-3064 before the respondent court. Said Civil case, therefore, should have been
dismissed because it is a mere relitigation of the same issues previously adjudged with
finality, way back in 1956, between the same parties or their privies and concerning the
same subject matter. We have consistently held that the doctrine of res judicata applies
where, between a pending action and one which has been finally and definitely settled,
there is Identity of parties, subject matter and cause of action.
The concept of res judicata as a "bar by prior judgment" was explained in Comilang vs.
Court of Appeals, et al., promulgated on July 15, 1975, 6 thus:
The fundamental principle upon which the doctrine of res judicata rests is that
parties ought not to be permitted to litigate the same issue more than once; that,
when a right or fact has been jurisdically tried and determined by a court of
competent jurisdiction, or an opportunity for such trial has been given, the
judgment of the court, so long as is remains unreversed, should be conclusive
upon the parties and those in privity with them in law or estate. ...
xxx xxx xxx
This principle of res judicata is embodied in Rule 39, Sec. 49(b) and (c) of the
Rules oil' Court, as follows;
(b) In other cases the judgment or order is, with respect to the matter directly
adjudged or as to any other matter that could have been raised in relation
thereto, conclusive between the parties and their successors in interest by title
subsequent to the commencement of the action or special proceeding, litigating
for the same title and in the same capacity.
CIVIL PROCEDURE CASES Motions (Rule 12, 15 & 16)
(c) In any other litigation between the same parties or their successors-in-
interest, that only is deemed to have been adjudged in a former judgment which
appears upon its face to have been so adjudged, or was actually and necessarily
included therein or necessary thereto.
Sec. 49(b) enunciates that concept of res judicata known as 'bar by prior
judgment' while Sec. 49(c) refers to 'Conclusiveness of judgment.' There is bar
by prior judgment' when, between the first case where the judgment was
rendered and the second case which is sought to be barred, there is Identity of
parties, subject matter and cause of action. The judgment in the first case
constitutes an absolute bar to the subsequent action. It is final as to the claim or
demand in controversy, including the parties and those in privity with them, not
only as to every matter which was offered and received to sustain or defeat the
claim or demand, but as to any other admissible matter which might have been
offered for that purpose and of all matters that could have been adjudged in that
case. But where between the first and second cases, there is Identity of parties
but no Identity or cause of action, the first judgment is conclusive in the second
case, only as to those matters actually and directly controverted and determined
and not as to matters merely involved therein. (pp. 76-78).
A comparison between the earlier case of "Rafael Dinglasan, et al. vs. Lee Bun Ting, et
al." (G. R. No. L-5996) and the case pending before respondent court 7 reveals that the
requisites for the application of the doctrine of res judiciata are present. It is undisputed that
the first case was tried and decided by a court of compentent jurisdiction, whose decision was
affirmed on appeal by this Tribunal. The parties to the two cases are substantially the same,
namely, as plaintiffs, Rafael A. Dinglasan, Carmen A. Dinglasan, Francisco A. Dinglasan, Jr.,
Ramon A. Dinglasan, Lourdes A. Dinglasan, Mercedes A. Dinglasan, Concepcion A.
Dinglasan, Mariano A. Dinglasan, Jose A. Dinglasan, Loreto A. Dinglasan, Manuel A.
Dinglasan, Rizal A. Dinglasan and Jimmy Dinglasan (the differences being the inclusions of
the minor Vicente Dinglasan in L-5996 and Jesse Dinglasan in the case before respondent
court), against defendants Lee Bun Ting and Ang Chia, in her capacity as Widow of the
deceased Lee Liong (and Administratrix of his estate in L-5996). The subject matter of the
two actions are the same, namely, that "parcel of land, Cadastral Lot No. 398, located at
Trece de Agosto Street, now Roxas Avenue, corner of Pavia St., in the municipality of Capiz,
now Roxas City, covered by Original Certificate of Title No. 3389 of the Office of Register of
Deeds of Capiz in the name of ... Francisco Dinglasan and originally declared under Tax
(Declaration) No. 19284 also in his name in the municipality of Capiz, but now declared as
Cadastral Lots Nos. 398-A and 398-B respectively under Tax Declarations Nos. 7487 and
7490 in the City of Roxas in the names of Ang Chia Vda. de Lee and Lee Bun Ting
respectively ... " The causes of action and the reliefs prayed for are identical the annulment
of the sale and the recovery of the subject parcel of land.
21

Notwithstanding the mode of action taken by private respondents, We find that in the
ultimate analysis, Civil Case No. V-3064 is but an attempt to reopen the issues which
were resolved in the previous case. Contrary to the contentions of private respondents,
there has been no change in the facts or in the conditions of the parties. Neither do We
find Our ruling in the Philippine Banking Corporation case applicable to the case at bar,
considering the rule that posterior changes in the doctrine of this Court cannot
retroactively be applied to nullify a prior final ruling in the same proceeding where the
prior adjudication was had, whether the case should be civil or criminal in nature. The
determination of the questions of fact and of law by this Court on June 27, 1956 in case
No. L-5996 has become the law of the case, and may not now be disputed or relitigated
by a reopening of the same questions in a subsequent litigation between the same
parties and their privies the same subject matter. Thus, in People vs. Olarte, 8 We
explained this doctrine, as follows:
Suffice it to say that our ruling in Case L-13027, rendered on the first appeal,
constitutes the law of the case, and, even if erroneous it may no longer be
disturbed or modified since it has become final long ago. A subsequent
reinterpretation of the law may be applied to new cases bat certainly not to an old
one finally and conclusively determined (People, vs. Pinuila, G. R. No. L-11374,
May 30, 1958; 55 O.G. 4228).
Law of the case' has been defined as the opinion delivered on a former
appeal. More specifically, it means that whatever is once irrevocably
established the controlling legal rule of decision Between the same
parties in the same case continues to 1)(, the law of the case whether
correct on general principles or not, so long as the facts on which such
decision was predicated continue to be the facts of the case before the
court. (21 C.J.S. 330). (cited in Pinuila case, supra).
As a general rule a decision on a prior appeal of the same case is held to
be the law of the case whether that decision is right or wrong, the remedy
of the party being to seek a rehearing. (5 C.J.S. 1277). (also cited in
Pinuila case)
It is also aptly held in another case that:
It need not be stated that the Supreme Court, being the court of last resort, is the
final arbiter of all legal questions properly brought before it and that its decision in
any given case constitutes the law of that particular case. Once its judgment
becomes final it is binding on all inferior courts, and hence beyond their power
CIVIL PROCEDURE CASES Motions (Rule 12, 15 & 16)
and authority to alter or modify Kabigting vs. Acting Director of Prisons, G. R. No.
L-15548, October 30, 1962).
More categorical still is the pronouncement of this Court in Pomeroy vs. Director of
Prisons, L-14284-85, February 24, 1960:
It will be seen that the prisoner's stand assumes that doctrines and
rulings of the Supreme Court operate retrospectively and that they can
claim the benefit of decisions in People vs, Hernandez; People vs.
Geronimo, and People vs. Dugonon (L-6025-26, July 18, 1956; L-8936,
Oct. 31, 1956; and L-8926, June 29, 1957, respectively), promulgated
four or more years after the prisoner applicants had been convicted by
final j judgment and started serving sentence. However, the rule adopted
by this Court (and by the Federal Supreme Court) is that judicial
doctrines have only prospective operation and do not apply to cases
previously decided (People vs. Pinuila, L-11374, promulgated May 30,
1958)
In the foregoing decision, furthermore, this Court quoted and reiterated the rule in
the following excerpts from People vs. Pinuila, G.R No. L-11374, jam cit.:
The decision of this Court on that appeal by the government from the order of
dismissal, holding that said appeal did not place the appellants, including
Absalong Bignay in double jeopardy, signed and concurred in by six justices as
against three dissenters headed by the Chief Justice, promulgated way back in
the year 1952, has long become the latter of the curse. It may be erroneous,
judge by the law on double jeopardy as recently interpreted by this same.
Tribunal. Even so, it may not be disturbed and modified. Our recent interpretation
of the law may be applied to new cases, but certainly not to an old one finally and
conclusively determined. As already stated, the majority opinion in that appeal
is now the law of the case.
The same principle, the immutability of the law of the case notwithstanding
subsequent changes of judicial opinion, has been followed in civil cases:
Fernando vs. Crisostomo, 90 Phil. 585; Padilla vs. Paterno, 93 Phil.
884; Samahang Magsasaka, Inc. vs. Chua Guan, L-7252, February, 1955.
It is thus clear that posterior changes in the doctrine of this Court can not
retroactively be applied to nullify a prior final ruling in the same proceeding where
22
 CIVIL PROCEDURE CASES Motions (Rule 12, 15 & 16)
the prior adjudication was had, whether the case should be civil or criminal in
nature. 9

Reasons of public policy, judicial orderliness, economy and judicial time and the interests
of litigants, as well as the peace and order of society, all require that stability be accorded
the solemn and final judgments of the courts or tribunals of competent jurisdiction. There
can be no question that such reasons apply with greater force on final judgments of the
highest Court of the land.

WHEREFORE, certiorari is granted, the Orders complained of are hereby annulled and
set aside, and respondent Judge is directed to issue an Order dismissing Civil Case No.
V-3064. With costs against private respondents.

23

G.R. No. 109068 January 10, 1994
GAUDENCIO GUERRERO, petitioner, vs. REGIONAL TRIAL COURT OF ILOCOS
NORTE, BR. XVI, JUDGE LUIS B. BELLO, JR., PRESIDING, and PEDRO G.
HERNANDO, respondents.
Filed by petitioner as an accion publicana 1 against private respondent, this case assumed
another dimension when it was dismissed by respondent Judge on the ground that the parties
being brother-in-law the complaint should have alleged that earnest efforts were first exerted
towards a compromise.
Admittedly, the complaint does not allege that the parties exerted earnest towards a
compromise and that the same failed. However, private respondent Pedro G. Hernando
apparently overlooked this alleged defect since he did not file any motion to dismiss nor
attack the complaint on this ground in his answer. It was only on 7 December 1992, at
the pre-trial conference, that the relationship of petitioner Gaudencio Guerrero and
respondent Hernando was noted by respondent Judge Luis B. Bello, Jr., they being
married to half-sisters hence are brothers-in-law, and on the basis thereof respondent
Judge gave petitioner five (5) days "to file his motion and amended complaint" to allege
that the parties were very close relatives, their respective wives being sisters, and that
the complaint to be maintained should allege that earnest efforts towards a compromise
were exerted but failed. Apparently, respondent Judge considered this deficiency a
jurisdictional defect.
On 11 December 1992, Guerrero moved to reconsider the 7 December 1992 Order
claiming that since brothers by affinity are not members of the same family, he was not
required to exert efforts towards a compromise. Guerrero likewise argued that Hernando
was precluded from raising this issue since he did not file a motion to dismiss nor assert
the same as an affirmative defense in his answer.
On 22 December 1992, respondent Judge denied the motion for reconsideration holding
that "[f]ailure to allege that earnest efforts towards a compromise is jurisdictional such
that for failure to allege same the court would be deprived of its jurisdiction to take
cognizance of the case." He warned that unless the complaint was amended within five
(5) days the case would be dismissed.
On 29 January 1993, the 5-day period having expired without Guerrero amending his
complaint, respondent Judge dismissed the case, declaring the dismissal however to be
without prejudice.
CIVIL PROCEDURE CASES Motions (Rule 12, 15 & 16)
Guerrero appeals by way of this petition for review the dismissal by the court a quo. He
raises these legal issues: (a) whether brothers by affinity are considered members of the
same family contemplated in Art. 217, par. (4), and Art. 222 of the New Civil Code, as
well as under Sec. 1, par. (j), Rule 16, of the Rules of Court requiring earnest efforts
towards a compromise before a suit between them may be instituted and maintained;
and, (b) whether the absence of an allegation in the complaint that earnest efforts
towards a compromise were exerted, which efforts failed, is a ground for dismissal for
lack of jurisdiction.
The Constitution protects the sanctity of the family and endeavors to strengthen it as a
basic autonomous social institution. 2 This is also embodied in Art. 149, 3 and given flesh in
Art. 151, of the Family Code, which provides:
Art. 151. No suit between members of the same family shall prosper unless it
should appear from the verified complaint or petition that earnest efforts toward a
compromise have been made, but that the same had failed. If it is shown that no
such efforts were in fact made, the case must be dismissed.
This rule shall not apply to cases which may not be the subject of compromise
under the Civil Code.
Considering that Art. 151 herein-quoted starts with the negative word "No", the
requirement is mandatory 4 that the complaint or petition, which must be verified, should
allege that earnest efforts towards a compromise have been made but that the same failed,
so that "[i]f it is shown that no such efforts were in fact made, the case must be dismissed."
Further, Art. 151 is contemplated by Sec. 1, par. (j), Rule 16, of the Rules of Court which
provides as a ground for motion to dismiss "(t)hat the suit is between members of the
same family and no earnest efforts towards a compromise have been made."
The Code Commission, which drafted the precursor provision in the Civil Code, explains
the reason for the requirement that earnest efforts at compromise be first exerted before
a complaint is given due course
This rule is introduced because it is difficult to imagine a sadder and more tragic
spectacle than a litigation between members of the same family. It is necessary
that every effort should be made toward a compromise before a litigation is
allowed to breed hate and passion in the family. It is known that a lawsuit
between close relatives generates deeper bitterness than between strangers . . .
24
 CIVIL PROCEDURE CASES Motions (Rule 12, 15 & 16)
A litigation in a family is to be lamented far more than a lawsuit between it (sic) so desire must
strangers . . . 5 amend the complaint otherwise, the court will have to dismiss the case (emphasis
supplied) . . ." The Order of 29 January 1993 dismissing the case without prejudice only
But the instant case presents no occasion for the application of the made reference to an earlier order "admonishing" counsel for Guerrero to amend the
above-quoted provisions. As early as two decades ago, we already ruled in Gayon complaint, and an "admonition" is not synonymous with "order". Moreover, since the
v. Gayon 6 that the enumeration of "brothers and sisters" as members of the same family assailed orders do not find support in our jurisprudence but, on the other hand, are
does not comprehend "sisters-in-law". In that case, then Chief Justice Concepcion based on an erroneous interpretation and application of the law, petitioner could not be
emphasized that "sisters-in-law" (hence, also "brothers-in-law") are not listed under Art. 217 bound to comply with them. 12
of the New Civil Code as members of the same family. Since Art. 150 of the Family Code
repeats essentially the same enumeration of "members of the family", we find no reason to WHEREFORE, the petition is GRANTED and the appealed Orders of
alter existing jurisprudence on the matter. Consequently, the court a quo erred in ruling that 7 December 1992, 22 December 1992 and 29 January 1993 are SET ASIDE. The
petitioner Guerrero, being a brother-in-law of private respondent Hernando, was required to Regional Trial Court of Laoag City, Branch 16, or whichever branch of the court the case
exert earnest efforts towards a compromise before filing the present suit. may now be assigned, is directed to continue with Civil Case
No. 10084-16 with deliberate dispatch.
In his Comment, Hernando argues that ". . . although both wives of the parties were not
impleaded, it remains a truism that being spouses of the contending parties, and the SO ORDERED.
litigation involves ownership of real property, the spouses' interest and participation in the
land in question cannot be denied, making the suit still a suit between half-sisters . . ." 7

Finding this argument preposterous, Guerrero counters in his Reply that his "wife has no
actual interest and participation in the land subject of the . . . suit, which the petitioner
bought, according to his complaint, before he married his wife." 8 This factual controversy
however may be best left to the court a quo to resolve when it resumes hearing the case.

As regards the second issue, we need only reiterate our ruling in

O'Laco v. Co Cho Chit, 9 citing Mendoza v. Court of Appeals, 10 that the attempt to
compromise as well as the inability to succeed is a condition precedent to the filing of a suit
between members of the same family, the absence of such allegation in the complaint being
assailable at any stage of the proceeding, even on appeal, for lack of cause of action.

It is not therefore correct, as petitioner contends, that private respondent may be deemed
to have waived the aforesaid defect in failing to move or dismiss or raise the same in the
Answer. On the other hand, we cannot sustain the proposition of private respondent that
the case was, after all, also dismissed pursuant to Sec. 3, Rule 17, of the Rules of
Court 11 for failure of petitioner to comply with the court's order to amend his complaint.

A review of the assailed orders does not show any directive which Guerrero supposedly
defied. The Order of 7 December 1992 merely gave Guerrero five (5) days to file his
motion and amended complaint with a reminder that the complaint failed to allege that
earnest efforts were exerted towards a compromise. The Order of 22 December 1992,
which denied Guerrero's motion for reconsideration, simply stated that "Plaintiff if
25

G.R. No. L-48315 February 27, 1979
ATTY. DOMINADOR B. BORJE petitioner, vs. HON. COURT OF FIRST INSTANCE OF
MISAMIS OCCIDENTAL, BRANCH II, VIOLETA GALICINAO MISAMIS OCCIDENTAL
WATER DISTRICT, and THE CHAIRMAN OF THE BOARD, respondents.
The cause for certiorari and/or mandamus brought to the attention of this Court in this
case is the alleged grave abuse of discretion amounting to lack of jurisdiction of
respondent Court of First Instance of Misamis Occidental Branch II, for dismissing the
complaint for damages of petitioner in Civil Case No. OZ 686, entitled "Atty. Dominador
B. Borje vs. Violets Galicinao et al." without conducting any hearing despite the existence
of controverted facts that needed to be proved.
Petitioner alleged that he is the counsel of the water consuming public of Ozamiz City
who were indignant against the increase of water rates imposed by respondent Misamis
Occidental Water District and who thereby resorted to court action for redress and/or
remedy. After acceptance of the retainer as counsel plus the consequent representation
of the consumers also in debates and discussions in the air, he allegedly received water
bills from the Water District without indication of the meter readings, the number of cubic
meters consumed and the amounts to be paid. So he refused to pay the "blank bills." For
such failure, petitioner's water service was cut on February 6, 1978.
By reason of these acts of "harassment" of private respondents resulting in his
"humiliation" as well as unlawful deprivation of a life's necessity, petitioner brought
Special Civil Case No. OZ 686, an action for damages with mandatory injunction, before
respondent Court.
Acting on the prayer incorporated therein for pre mandatory injunction, respondent Court
issued an order dated February 8, 1978 enjoining respondents from disconnecting the
water service of petitioner. Upon learning that the same was already cut, the Court
issued another order reconnect it immediately.
On February 15, 1978, private respondents filed a motion to dismiss the complaint on
two grounds, namely: a lack of jurisdiction of respondent Court allegedly because the
"Main thrust of the subject and nature of the action or suit appearing in the complaint is
clearly within the field of special civil action or suit action or special proceeding 1 and (b)
there is another action pending between the same parties for the same cause, referring to
Special Civil Case No. 0390.
On February 27, 1978, petitioner filed an opposition thereto stating that the issues raised
are justiciable and a court of general jurisdiction has the authority to try the case. He
CIVIL PROCEDURE CASES Motions (Rule 12, 15 & 16)
further contended that Special Civil Case No. 0390, which questioned the increased
water rates unilaterally imposed by the Misamis Occidental Water District, the
constitutionality of Presidential Decree No. 198 and the selection of the members of the
Board of Directors, is entirely different from Civil Case No. OZ-686, which is an action for
damages due to the harassment committed by private respondents on petitioner.
Surprisingly though, respondent Court, through Hon. Melecio A. Genato, a temporary
judge the real issued an order dated March 9, 1978 dismissing the case not on the basis
of the grounds alleged by Private respondents in their motion to dismiss but on the
grounds that there was no malice or bad faith in the severance of the water coon of
petitioner and that private respondent had already reconnected the same. The
dispositive portion thereof states :
WHEREFORE, the above entitled case is hereby for being moot and academic
without pronouncement as to cost. SO ORDERED. 2
A motion for reconsideration was thus filed by petitioner where he assailed the said order
of dismissal for having been rendered in violation of Section 1, Rule 36, Revised Rules of
Court and for not being correct because although his water service has been
reconnected, he has suffered damages which could be proved by him in an impartial
proceeding. He also assailed the said order, denominating it as a "midnight order"
because on March 9, 1978, "the Clerk of Court officially showed Hon. Melecio A. Genato
the telegram of Hon. Bienvenido A. Ebarle to schedule trials from March 10, 1978 to
March 17, 1978 indicating that he has already and previously taken his oath. 3
An opposition thereto was filed by private respondents disputing only the claim of
petitioner that the order dated March 9, 1978 was a midnight order. Petitioner filed a
"rejoinder" reiterating that the order of dismissal is a midnight order citing the cases
of Siazon vs. Hon. Judge of CFI of Cotabato, Branch II, L-29354, January 27, 1969, 26
SCRA 664 and Li Siu Liat vs. Republic of the Philippines, L-25356, November 26, 1967,
21 SCRA 1039. By reason of the number of arguments on the issue of whether the order
dated March 9, 1978 is a midnight order or not, the respondent Court, through Hon.
Bienvenido A. Ebarle, considered the motion for reconsideration as mainly anchored on
the lack of authority of Judge Genato In denying the said motion, the Court held in an
order dated April 18, 1978, as follows:
While it may be true that Judge Genato might not have the authority anymore to
issue the said order in view of the pertinent citations made by plaintiff, the more
important thing to consider is the intrinsic merit of the complaint in relation to the
order of dismiss The Court has gone over the pleadings of both parties, closely
26

studied the issues involved, and weighed the preponderance of their implication
carefully.
The cause of action as admitted by plaintiff is the alleged arbitrary petition by
defendants of plaintiff's water pipes. However, it appears that plaintiff was not
singled out in the matter of water pipes disconnection, for aside from him there
were three other consumers whose connections were ordered cut and in fact
disconnected about the same time and/or occasion, an official act of defendants
indicating absence of malice. 4
In assailing the order of dismissal dated March 9, 1978 which was affirmed in the order
dated April 18, 1978, petitioner contends in this instant petition for certiorari and/or
mandamus with this Court that said dismissal cannot be on lack of cause of action
because the complaint alleged sufficient facts to show that his rights have been seriously
violated by private respondents. He also argues that it cannot be a judgment on the
pleadings because the facts are controverted. He thereby concludes that respondent
Court has gravely abused its discretion amounting to lack or excess of jurisdiction when
it dismissed the case without any evidence presented by both parties in support of their
respective positions considering that the allegations of that he has no appeal nor any
plain, speedy and adequate remedy in the ordinary course of law, except this present
petition.
CIVIL PROCEDURE CASES Motions (Rule 12, 15 & 16)
To all intents and purposes, respondent Court decreed the dismissal on its own initiative
as in the case of Manila Herald Publishing Co., Inc, vs. Ramos, et al, 6 where neither a
motion to dismiss nor an answer had been made when the decision was handed down. In
granting the writ of certiorari, this Court ruled therein that: "Section 1 of Rule 8 (now Section 1
of Rule 16) enumerates the grounds upon which an action may be dismissed, and it
specifically ordains that a motion to this end be filed. In the light of this express requirement
we do not believe that the court had power to dismiss the case without the requisite motion
duly presented. ... The only instance in which, according to said Rules, the court may dismiss
upon the court's own motion on action is, when the "plaintiff falls to appear at the time of the
trial or to the prosecute his action for an unreasonable length of time or to comply with the
Rules or any order of the court.
The real cause for concern, though, is not so much the dismissal of the case for lack of
presentation of the requisite motion but rather the dismissal thereof without affording
petitioner an opportunity to be heard despite the presence of factual issues that needed
to be proved.
In the case at bar, respondents premised their right to cut off the water service
connection on the violation of petitioner's water service contract 7 which is the contract
signed by petitioner with the National Waterworks and Sewerage Authority on September 16,
1958 to which private respondent Misamis Occidental Water District claims it has been
subrogated. The said contract provides the following:

Indeed, respondent Court acted with grave abuse of discretion if not in excess of its
3. To pay monthly the NWSA for the water service furnished upon presentation of
jurisdiction in dismissing the case. Firstly, the said order of dismissal dated March 9,
the bill or within thirty (30) days from its presentation.
1978 is not premises on lack of jurisdiction or on the pendency of another case between
the same parties for the same cause the grounds alleged by private respondents m
6. That the NWSA may disconnect the service upon violation of the term of the
their motion to dismiss. On this score, it has been hold in the case of Malig, et al. v
contract.
Bush 5 that dismissal of actions on grounds not. alleged in the motion to dismiss is improper
for in so doing, a court in effect dismisses an action motu proprio without giving the plaintiffs a
chance to argue the point and without receiving any arguments or evidence on the question. In addition to the said contract, private respondents also presented their "Notice to the
Public 8 where the water consumers were likewise informed that upon failure to settle their
bills within the collection period, their water service will be shut off. Thirdly, they annexed to
But while in the aforecited Malig, case, the order of is based on one of the grounds
their comment on this petition a facsimile copy of the monthly bill 9 furnished each water
enumerated in on I of Rule 16, Revised Rule of Court, namely: prescription the order
consumer wherein it is stated that "service may be disconnected immediately if payment of
herein brought to Us for review is not based on any of them. In a rather fashion,
the bill is not made to the field collector after due date.
respondent Court made a on the basis merely of the pleadings filed and without
conducting any hearing, that there is no malice or bad faith on the part of private
Indeed, all these empower the private respondents to disconnect the water service of the
respondents in their act of severing petitioner's water supply. Respondent court also
consumers upon failure to pay. But the question posed by petitioner is whether or not
noted the fact that private respondents had reconnected the water pipes or water service
there is really failure to pay on his part. It is his contention that there is no failure as he
of petitioner and erroneously concluded that the case has become moot and academic.
was sent water bills that did not indicate the meter readings, the number of cubic meters
consumed and the amount to be paid.
27

Inasmuch as private respondents deny these allegations of petitioner, an issue of fact
exists that requires presentation of proof. If the allegations of petitioner are true: private
respondents are not at all authorized to cut off his water service as the collection period
as to him would not have even started yet. For an obligation to become due there must
be a demand. 10 Default generally begins from the moment the creditor demands the
performance of the obligation. Without such demand, judicial or extra-judicial the effects of
default will not arise.
It is to be noted that private respondents attached to their comment on this petition only a
facsimile copy of the water bill issued to consumers while they presented to this Court a
xerox copy of the contract between NWSA and the petitioner, and a xerox copy of the
final notice, not just facsimiles thereof. Although the issue of the effectivity of the denial of
private respondents as to the alleged sending of blank bins is not for this Court to
determine, it would not be amiss to state that private respondents could have easily
annexed also a xerox copy of the water bill sent to petitioner, if only to belie the latter's
claims.
At any rate, private respondents also argue that petitioner could have paid his account
when the final notice 11 to pay was sent him since he was then already certain of the amount
of the bill. This final notice is the notice of disconnection, served on the day the service was
cut off.
Petitioner, however, contends that this was the first time he ever came to know of the
sum due from him and besides, he claims that only the total amount due for the months
of November and December, 1977 was stated. There is no specification of the amount
due for each month, the meter readings and the number of cubic meters consumed,
thus, leaving him uncertain as to how the amount was arrived at. Assuming the truth of
these allegations, private respondents would not have been entitled still to cut off
petitioner's water supply at the time they cut if off as the demand did not contain the
requisite details and hence, improper. And even if the sufficiency of the demand is
conceded, petitioner has still thirty days from date of such knowledge within which to pay
the same in accordance with the contract and the avowed policy of the water district.
CIVIL PROCEDURE CASES Motions (Rule 12, 15 & 16)
present their respective cages and submit evidence in support thereof, is one of the
primary cardinal rights of litigants.
The importance of this right has been underscored in several cases of this nature
decided by this Court. In one of such cases, De Leon v Henson, 12 this Court ruled that the
dismissal of an action upon a motion to dismiss constitutes a denial of due process, if, from a
consideration of the pleadings, it appears that there are issues of fact which cannot be
decided without a trial of the case on the merits. Similarly, in Constantine v
Estenzo 13 citing Garanciang, et al. v Garanciang, et al 14 and Botiaga v Soler, 15 this Court
held as follows:
... Summary or outright dismissals of actions are not proper where there are
factual matters in dispute which need presentation and appreciation of evidence.
The demands of a fair, and wise administration of justice call for faithful
adherence to legal precepts on procedure which ensure to litigants the
opportunity to present their evidence and secure a ruling on all the issues
presented in their respective pleadings. 'Short cuts in judicial processes are to be
avoided where they impede rather than promote a judicious dispensation of
justice.
WHEREFORE, the petition for certiorari and/or mandamus is hereby GRANTED, the
Orders dated March 9,1978 and April 18, 1978 dismissing the complaint of petitioner for
damages and denying the motion for reconsideration thereof, respectively, are set aside
for being null and void, and respondent Court of First Instance of Misamis Occidental
Branch II is hereby ordered to try the case on the merits after conducting a pre-tried
conference.

Verily, the above discussion shows the need of presentation of proof for the respective
allegations of the parties. For the respondent Court to make a finding of lack of malice or
bad faith on the part of private respondents from those controverted facts and then
decree the dismissal of the case is, therefore, violative of due process. In view of the
doubtful question of facts presented herein, respondent court, in the exercise of sound
discretion, should have refused to consider and decide in a summary manner and should
have allowed the parties to present proof in support of their respective stand. This is
because the right to a hearing, which is the right of the parties interested or affected to
28

G.R. No. 143788 September 9, 2005
DANFOSS, INC., Petitioners, vs. CONTINENTAL CEMENT
CORPORATION, Respondent.
This is a petition for review on certiorari under Rule 45 of the 1997 Rules on Civil
Procedure of the February 11, 2000 decision1 of the Court of Appeals in CA-G.R. No. SP-
55645, and its resolution dated June 7, 2000 denying petitioners motion for
reconsideration.
The antecedents show that on November 5, 1998, respondent Continental Cement
Corporation (CCC) filed a complaint for damages against petitioner DANFOSS and
Mechatronics Instruments and Controls, Inc. (MINCI) before the Regional Trial Court of
Quezon City, Branch 80, alleging that:
xxx xxx xxx
6. On 1 September 1997, Plaintiff CCC purchased from defendant MINCI two (2) unit
132 KW Danfoss Brand Frequency Converter/Inverter for use in the Finish Mill of its
Cement Plant located in Barrio Bigte, Norzagaray, Bulacan. The said purchase is
covered by a Purchase [Order] (PO) No. 36625.
6.1 Under the terms and conditions of the purchase order, the delivery of the two (2) unit
Frequency Converter are to be delivered within eight (8) to ten (10) weeks from the
opening of the letter of credit;
7. Defendant MINCI, immediately relayed the purchase order of plaintiff CCC to the other
defendant DANFOSS, represented by Messrs. Klaus Stove and Hans Vigaard, who in
turn forwarded the same to their Asian Regional Office in Singapore and Head Office in
Denmark for the shipment of the orders to the Philippines.
7.1 Defendant DANFOSS commitment to deliver the two (2) unit Danfoss Brand
Frequency Converter/Inverter to plaintiff CCC was relayed by defendant MINCI to CCC
upon the assurance of Messrs. Stove and Vigaard of DANFOSS.
8. On September 1997, plaintiff CCC received the pro-forma invoice of defendant MINCI
through fax transmission dated 2 September 1998, indicating the mode of payment
through irrevocable letter of credit in favor of Danfoss Industries Pte. Ltd.
CIVIL PROCEDURE CASES Motions (Rule 12, 15 & 16)
8.1 Plaintiff CCC executed and opened a letter of credit under LC No. 970884 in favor of
DANFOSS INDUSTRIES PTE. LTD., with address at 6 Jalan Pesawat, Singapore
619364, which is the Asian Regional Office of defendant DANFOSS
9. Defendant MINCI informed plaintiff CCC through fax transmission dated 17 September
1997, that the two (2) unit Frequency Converter/Inverter are ready for shipment, and at
the same time requested for the amendments of the letter of credit changing the port of
origin/loading from Singapore to Denmark.
9.1 In compliance, plaintiff CCC amended the letter of credit changing the port of origin
from Singapore to Denmark.
10. On 6 November 1997, defendant MINCI informed plaintiff CCC that Danfoss
Industries Pte. Ltd. was still checking the status of the shipment of the two (2) unit
Frequency Converter/Inverter with Danfoss Denmark.
10.1 In reply, plaintiff CCC through a letter dated 7 November 1997, reiterated its
demand that every delay in the shipment of the two (2) unit Frequency Converter/Inverter
will cause substantial losses in its operations and requested for the early work out and
the immediate shipment of the frequency converter to avoid further loss to the
company.
11. However, on 9 November 1997, defendant DANFOSS, informed the other defendant
MINCI through fax transmission, copy furnished plaintiff CCC, that the reason why
DANFOSS has delivery problems was that some of the supplied components for the new
VLT 5000 series did not meet the agreed quality standard. That means that their factory
was canvassing for another supplier. And at that moment, there was no clear message
when normal production will resume.
12. Due to this information received, plaintiff CCC surmised that defendants MINCI and
DANFOSS could not be able to deliver the two (2) unit Frequency Converter within the
maximum period of ten (10) weeks period from the opening of the Letter of Credit, as one
of the conditions in the Purchase Order dated 1 September 1997.
12.1 Thereafter, no definite commitment was received by plaintiff CCC from defendants
MINCI and DANFOSS for the delivery of the two (2) unit Frequency Converter.
13. By reason of the delay of the defendants MINCI and DANFOSS to deliver the two (2)
unit Frequency Converter/Inverter under PO No. 36625, plaintiff CCC, through its
29

Purchasing Manager, informed defendant MINCI in a letter dated 13 November 1997, of
the plaintiffs intention to cancel the said order.
13.1 As a consequence thereof, plaintiff CCC has suffered an actual substantial
production losses in the amount of Eight Million Sixty-four Thousand Pesos
(P8,064,000.00) due to the time lost and delay in the delivery of the said two (2) unit
Frequency Converter/Inverter. Likewise, plaintiff CCC was compelled to look for another
supplier.
xxx xxx xxx2
On February 17, 1999, petitioner DANFOSS filed a motion to dismiss the complaint on
the ground that it did not state a cause of action:
xxx xxx xxx
The above allegations of the complaint clearly establish the following key constitutive
facts:
1. Defendants period of delivery is from 8 to 10 weeks from the opening of the letter of
credit on September 9, 1997 or until November 19, 1997.
2. Defendant Danfoss, although having problems with its supplier during the period prior
to defendants cancellation, nevertheless, plaintiff never alleged that Danfoss Denmark
cannot perform its obligation to deliver by the 10th week or on November 20, 1997.
Admittedly, plaintiff only surmised that defendant Danfoss could not deliver.
3. Before the period for delivery has expired on November 19, 1997, the plaintiff
cancelled its order on November 13, 1997. The cancellation took place seven (7) days
before the expiry of the defendants obligation to deliver on November 19, 1997.
4. Neither plaintiff nor defendant Danfoss changed the date of delivery, what plaintiff
changed in the letter of credit was only the port of origin/loading from Singapore to
Denmark. The period of delivery as stipulated in the pro forma invoice issued by
defendant MINCI remained intact, that is for a period of 6 to 10 weeks from the opening
of the letter of credit on September 9, 1997 or until November 19, 1997 was still in force
when the plaintiff cancelled its order on November 13, 1997. Defendant Danfoss has not
incurred in delay and has 7 days more within which to make delivery. Plaintiff, having
cancelled the order on November 13, 1997 before the expiry of defendant Danfoss
delivery commitment, defendant Danfosss principal could not have been in default.
CIVIL PROCEDURE CASES Motions (Rule 12, 15 & 16)
5. Plaintiff never made an extrajudicial demand for the delivery of two (2) units
Frequency Converter on its due date. On the contrary, as above alleged, plaintiff
cancelled its order on November 13, 1997.
6. Plaintiffs claim for damages could not have accrued until after defendant incurred in
delay.
The above allegations neither prove any right of the plaintiffs arising from the
transactions nor a violation of such right. It is submitted that this Honorable Court based
on the complaint, cannot render a valid judgment against the defendant Danfoss. The
plaintiffs cause of action against Danfoss or plaintiffs right to demand delivery cannot
arise earlier than November 19, 1997, which is the last day for the defendant Danfosss
principal (Danfoss Denmark) to deliver the two (2) units Frequency Converter. As
admitted by the plaintiff, it cancelled its order on November 13, 1997, or six (6) days
before the expiry of the defendants obligation to deliver. Indeed, defendant Danfosss
obligation to deliver is not yet demandable. The period of 8 to 10 weeks for the delivery
of plaintiffs purchase order of two (2) units Frequency Converter was established for the
benefit of both the plaintiff and the defendant Danfoss. As such, plaintiff cannot demand
delivery before the period stipulated.
xxx xxx xxx
From the allegations of the complaint, there is also no clear and categorical demand for
the fulfillment of the plaintiffs obligation to deliver by the 10th week or on November 19,
1997.
WHEREFORE, it is respectfully prayed of this Honorable Court that the Complaint be
dismissed for failure to state a cause of action.3
The court a quo denied the motion to dismiss in its order 4 dated May 28, 1999, holding
that:
xxx xxx xxx
In the Courts opinion, the issue of whether or not the defendants incur delay in the
delivery of the equipment in question within the period stipulated is a debatable question
which necessitates actual trial on the merits where the parties have to adduce evidence
in support of their respective stance.
30

While the defendants contend that the stipulated period of delivery had not lapsed yet
when the plaintiff cancelled its order of the two equipments in question as the
cancellation took place seven (7) days before the expiry date of the defendants
obligation to deliver, the plaintiffs position is that the acts of the defendants had made
compliance with their obligation to deliver within the period stipulated, impossible, hence,
there was no need for a demand as the law provides that "when demand would be
useless, as when the obligor has rendered it beyond his power to perform." The plaintiffs
contention if properly and strongly supported by evidence during the hearing of the
merits of the case may well negates (sic) the defendants contrary stand.
As to the argument of the defendant MINCI that it cannot be held liable jointly with the
defendant Danfoss due to the fact that it was merely an "agent" of Danfoss, the Court
finds the same a debatable issue considering the stand of plaintiff that the defendant
MINCI dealt with the former not as an agent but also as a principal. The issue at hand
necessitates the presentation of evidence which has to be done during the hearing on
the merits of the case where the issue of damages incurred by either of the parties may
well be taken up and judgment be rendered after presentation of evidence by the parties.
WHEREFORE, premises considered, the two motions to dismiss, interposed separately
by the defendants as earlier stated, are both denied.
SO ORDERED.5
Danfoss filed a motion for reconsideration of the order but it was denied. On appeal to
the Court of Appeals, the latter also denied Danfoss petition for lack of merit. The CA
likewise denied petitioners motion for reconsideration, hence, this appeal.
The only issue for our consideration is whether or not the CA erred in affirming the denial
by the court a quo of petitioners motion to dismiss the complaint for damages on the
ground that it failed to state a cause of action.
Section 1 (g), Rule 16 of the 1997 Revised Rules on Civil Procedure provides that:
Section 1. Grounds Within the time for but before filing the answer to the complaint or
pleading asserting a claim, a motion to dismiss may be made on any of the following
grounds:
xxx xxx xxx
(g) That the pleading asserting the claim states no cause of action;
CIVIL PROCEDURE CASES Motions (Rule 12, 15 & 16)
A cause of action is defined under Section 2, Rule 2 of the same Rules as:
Sec. 2. Cause of action, defined. A cause of action is the act or omission by which a
party violates a right of another.
It is the delict or wrongful act or omission committed by the defendant in violation of the
primary right of the plaintiff.6
In order to sustain a dismissal on the ground of lack of cause of action, the insufficiency
must appear on the face of the complaint. And the test of the sufficiency of the facts
alleged in the complaint to constitute a cause of action is whether or not, admitting the
facts alleged, the court can render a valid judgment thereon in accordance with the
prayer of the complaint. For this purpose, the motion to dismiss must hypothetically admit
the truth of the facts alleged in the complaint.7
After a careful perusal of the allegations in respondents complaint for damages against
petitioner, we rule that the same failed to state a cause of action. When respondent sued
petitioner for damages, petitioner had not violated any right of respondent from which a
cause of action had arisen. Respondent only surmised that petitioner would not be able
to deliver the two units frequency converter/inverter on the date agreed upon by them.
Based on this apprehension, it cancelled its order six days prior to the agreed date of
delivery. How could respondent hold petitioner liable for damages (1) when petitioner had
not yet breached its obligation to deliver the goods and (2) after respondent made it
impossible for petitioner to deliver them by cancelling its order even before the agreed
delivery date?
The trial court erred in ruling that the issue of whether or not the defendants incurred
delay in the delivery of the equipment within the period stipulated was a debatable
question. It said that trial on the merits was necessary and the parties had to adduce
evidence in support of their respective positions.8 But what was there to argue about
when, based on the allegations of the complaint, petitioner was not yet due to deliver the
two units frequency converter/inverter when respondent cancelled its order? It still had
six days within which to comply with its obligation. The court a quo should not have
denied petitioners motion to dismiss the complaint (for its failure to state a cause of
action) when, on its face, it was clear that petitioner had not yet reneged on its obligation
to deliver the frequency converter/inverter on the date mutually agreed upon by the
parties. Moreover, the obligation itself was negated by no less than respondents own act
of cancelling its order even before the prestation became due and demandable. Where
therefore was the breach? Where was the damage caused by petitioner? There was
none.
31
 CIVIL PROCEDURE CASES Motions (Rule 12, 15 & 16)
Consequently, it was wrong for the CA to affirm the order of the trial court denying WHEREFORE, we hereby GRANT the petition. The assailed decision of the CA dated
petitioners motion to dismiss the complaint for its failure to state a cause of action. February 11, 2000 and its resolution dated June 7, 2000 are REVERSED and SET
ASIDE. Civil Case No. Q-98-35997 pending before the Regional Trial Court of Quezon
The principle of anticipatory breach enunciated in Blossom & Company, Inc. v. Manila City, Branch 80, is hereby DISMISSED.
Gas Corporation 9 does not apply here. In that case, Blossom & Company, Inc. entered
into a contract with Manila Gas Corporation for the sale and delivery of water gas and SO ORDERED.
coal gas tar at stipulated prices for a period of four years. On the second year of the
contract, Manila Gas willfully and deliberately refused to deliver any coal and water gas
tar to Blossom and Company, Inc. because it was asking for a higher price than what had
been previously stipulated by them. The price of its tar products had gone up. We held
that:

even if the contract is divisible in its performance and the future periodic deliveries are
not yet due, if the obligor has already manifested his refusal to comply with his future
periodic obligations, "the contract is entire and the breach total," hence, there can only
be one action for damages.10

Thus, the principle contemplates future periodic deliveries and a willful refusal to comply
therewith. Here, the obligation was single and indivisible to deliver two units of
frequency converter/inverter by November 19, 1997. The records do not show that
petitioner refused to deliver the goods on the date agreed upon. On the contrary,
petitioner exerted efforts to make good its obligation by looking for other suppliers who
could provide it the parts needed to make timely delivery of the frequency
converter/inverter ordered by respondent.

Furthermore, respondents complaint suffered from another fatal infirmity. It was

premature. The obligation of petitioner to respondent was not yet due and demandable at
the time the latter filed the complaint. The alleged violation of respondents right being no
more than mere speculation, there was no need to call for judicial intervention.

The premature invocation of the courts intervention was fatal to respondents cause of
action.11 Hence, the dismissal of respondents complaint was in order.

In sum, since respondents fear that petitioner might not be able to deliver the frequency
converter/inverter on time was not the cause of action referred to by the Rules and
jurisprudence, the motion to dismiss the respondents complaint for damages for lack of
cause of action should have been granted by the trial court. In addition, the dismissal of
the complaint was warranted on the ground of prematurity.

32

G.R. No. 161309 February 23, 2005
DOUGLAS LU YM, petitioner, vs. GERTRUDES NABUA, GEORGE N. LU, ALEX N.
LU, CAYETANO N. LU, JR., JULIETA N. LU AND BERNADITA N. LU, respondents.
One of the innovations introduced by the 1997 Rules of Civil Procedure is that the
resolution of a motion to dismiss shall state clearly and distinctly the reasons therefor. In
the case at bar, the Court is provided with the opportunity and task to elucidate on the
meaning and application of the new requirement.
Before us is a Petition for Review on Certiorari1 dated February 11, 2004 filed by Douglas
Lu Ym assailing the Court of Appeals Decision2 and Resolution3 respectively dated
August 20, 2003 and December 16, 2003. The questioned Decision dismissed
petitioners Petition4 and affirmed the trial courts orders dated September 16, 2002 5 and
October 16, 20026 which respectively denied petitioners Omnibus Motion to Dismiss the
Amended Complaint7 and Motion for Reconsideration.8
The facts9 as succinctly summarized by the Court of Appeals are as follows:
The instant petition stemmed from an Amended Complaint filed by the private
respondents against the petitioner, for Accounting with TRO and Injunction, on May 15,
2002.
On August 16, 2002, the petitioner filed an Omnibus Motion to Dismiss the Amended
Complaint based on the following grounds:
A. Plaintiffs claims are barred by a prior judgment or by the statute of limitations
{Rule 16, Sec. 1 (f)}.
B. Plaintiffs have no legal capacity to sue and/or do not have a cause of action
{Rule 16, Sec. 1(d) and/or 1(g)}.
C. Fraud and equity.
D. Docket fees not deemed paid, therefore, a condition precedent for filing the
claim has not been complied with {Rule 16, Sec. 1(j)}.
On August 29, 2002, the private respondents filed their Opposition to the Omnibus
Motion to Dismiss Amended Complaint alleging the following:
1. Plaintiffs claims are not barred by prior judgment nor by statute of limitations;
CIVIL PROCEDURE CASES Motions (Rule 12, 15 & 16)
2. Plaintiffs have the legal capacity to sue and have valid cause of action;
3. Docket fees have been paid by plaintiffs.
After the filing of petitioners Reply to the Opposition to the Motion to Dismiss Amended
Complaint, the incident was submitted for resolution pursuant to the August 30, 2002
Order of the court a quo.
In resolving the Omnibus Motion to Dismiss the Amended Complaint, the lower court
ruled as follows:
There are justiciable questions raised in the pleadings of the herein parties which are
proper subject of a full blown trial. The Omnibus Motion to Dismiss Amended Complaint
is hereby denied.
SO ORDERED.
The Motion for Reconsideration filed by the petitioner was resolved by the trial court in
this wise:
An attempt to discuss on the merit of the case might be interpreted as prejudgment. It is
the better part of discretion, for the Court to deny the Motion Reconsideration of the
order denying the Motion to Dismiss.
WHEREFORE, the Motion for Reconsideration is hereby denied.
SO ORDERED.
Petitioner filed a Petition for Certiorari and Prohibition Under Rule 65 With Prayer for the
Issuance of Temporary Restraining Order and/or Writ of Preliminary Injunction,
contending that the trial court committed grave abuse of discretion in denying his motion
to dismiss. The appellate court dismissed the petition holding that the assailed orders
may only be reviewed in the ordinary course of law by an appeal from the judgment after
trial. Thus, the proper recourse was for petitioner to have filed an answer and proceeded
to trial since the issues raised in his motion to dismiss require presentation of
evidence aliunde. An exception is when the trial court acts with grave abuse of discretion
in denying the motion to dismiss, in which case a petition for certiorari under Rule 65
may be proper. This, the trial court did not commit. Moreover, the Court of Appeals
declared that although the assailed orders were briefly phrased, the trial court complied
33

with the requirements set forth under Rule 16 of the 1997 Rules of Civil Procedure
(Rules) on the resolution of motions to dismiss.
With the denial of his Motion for Reconsideration, petitioner is now before this Court
seeking a review of the appellate courts Decision and Resolution claiming that the denial
of his motion to dismiss was a disguised deferment of the resolution of the said motion
and that the trial court failed to discuss and address each of the grounds cited therein
contrary to the express mandate of Section 3, Rule 16 of the Rules. Petitioner further
argues that the trial court committed grave abuse of discretion in refusing to address his
grounds to dismiss and thereby postponing their proper ventilation until trial. According to
him, Section 2 of the Rules provides that all available evidence on the question of fact
involved in the motion to dismiss may be presented including evidence aliunde. Thus, the
grounds for dismissal raised in his motion to dismiss could have been resolved in a
hearing prior to a full-blown trial.
Even assuming that the presentation of evidence aliunde is not allowed, petitioner
contends that the trial court and the Court of Appeals both erred in refusing to rule on the
other grounds to dismiss which do not require presentation of evidence aliunde such as
failure of the Amended Complaint to state a cause of action/the application of the "clean
hands" doctrine, and the trial courts lack of jurisdiction for failure of the respondents to
pay the proper filing and docket fees.
Petitioner also avers that there are other grounds to dismiss the case such as res
judicata, respondents lack of capacity to sue/waiver and prescription, all of which are
allegedly supported by evidence on record. It is petitioners theory that the Amended
Complaint is a collateral attack on the duly probated and fully implemented Last Will and
Testament of Cayetano Ludo.10 According to petitioner, Cayetano Ludos estate had been
distributed by virtue of a Project of Partition11 approved by the estate court in
its Order12 dated January 18, 1984 in Sp. Proc. No. 167-CEB. There are, between the
estate case and Civil Case No. 27717, identity of parties, subject matter and cause of
action. Hence, any further issue regarding the recovery of respondents supposed shares
in Mr. Ludos estate through Civil Case No. 27717 is precluded by the estate courts final
and fully executed orders.
CIVIL PROCEDURE CASES Motions (Rule 12, 15 & 16)
Petitioner moreover contends that respondents George, Alex, Cayetano, Jr., Julieta and
Bernadita Lu have lost standing to sue as a result of the document entitled Assignment
of Rights and Interests to the Inheritance from Don Cayetano Ludo 13 by which they
supposedly conveyed their interest to their inheritance to Ludo and Lu Ym Corporation.
As regards respondent Gertrudes Nabua, petitioner alleges that the Amended
Complaint fails to plead his actual contribution to the properties acquired by Mr. Ludo as
required by Article 148 of the Family Code. Hence, she too lacks capacity to sue.
Finally, petitioner claims that the case is already barred by prescription and laches.
Petitioner asserts that nearly 20 years had passed since (i) Mr. Ludo passed away on
April 14, 1983; (ii) petitioner and respondents George, Alex, Cayetano, Jr., Julieta and
Bernadita Lu executed the Project of Partition dated November 25, 1983; (iii)
respondents George, Alex, Cayetano, Jr., Julieta and Bernadita Lu executed
the Assignment of Rights and Interests to the Inheritance from Don Cayetano Ludo dated
February 22, 1984; and (iv) the estate court issued its (a) July 6, 1983 Order14 admitting
Mr. Ludos Will to probate; (b) January 18, 1984 Order15 approving the Project of
Partition and terminating the estate case; and (c) May 18, 1984 Order16 discharging
petitioner and Silvano Ludo from all their duties, liabilities and responsibilities as
executors of Mr. Ludos estate.
In their Comment17 dated May 28, 2004, respondents contend that the trial court did not
defer the resolution of petitioners motion to dismiss. On the contrary, the trial court
denied the motion considering that there are justiciable questions raised in the pleadings
of the parties which require a full-blown trial. According to respondents, the appellate
court properly considered this a sufficient disposition of the motion because the Rules do
not require courts at all times to cite the law and the facts upon which a resolution is
based, it being sufficient, in case of resolutions that do not finally dispose of a case such
as the denial of a motion to dismiss, to cite the legal basis therefor.
Moreover, the estate proceedings allegedly do not bar the instant case. Having
hypothetically admitted that Mr. Ludos Will was simulated, respondents contend that
petitioner cannot invoke the finality of the probate proceedings as a shield against the
instant case because the simulation and fraud attendant in the execution of the Will are
personal to petitioner. Besides, the properties included in Mr. Ludos Will are not the
same properties sought to be accounted in the instant case. Allegedly, the properties
subject of this case are those which petitioner excluded from Mr. Ludos Will during the
probate proceedings, whose titles and evidence of ownership were earlier transferred to
petitioner for him to hold in trust for respondents.
34

Respondents contend that the issue as to respondent Gertrudes Nabuas shares in Mr.
Ludos properties as the latters common law wife, raised as a specific allegation in
the Amended Complaint, has been joined by petitioners denial. Hence, a hearing on this
matter is necessary.
Moreover, respondents insist that the trial court correctly declared that there are
justiciable questions necessitating trial on the merits because the Assignment of Rights
and Interests to the Inheritance from Don Cayetano Ludo dated February 22, 1984, by
which respondents George, Alex, Cayetano, Jr., Julieta and Bernadita Lu allegedly
transferred their interest in Mr. Ludos estate to Ludo and Lu Ym Corporation, was
allegedly not offered and admitted in evidence. Hence, any conclusion drawn from this
document would be unwarranted.
Finally, respondents contend that petitioner never raised the issues of prescription and
laches in his motion to dismiss.
In his Reply18 dated September 30, 2004, petitioner reiterates his submissions.
At issue is whether the Court of Appeals erred in dismissing the petition for certiorari and
in holding that the trial court did not commit grave abuse of discretion in denying
petitioners motion to dismiss.
An order denying a motion to dismiss is an interlocutory order which neither terminates
nor finally disposes of a case, as it leaves something to be done by the court before the
case is finally decided on the merits. As such, the general rule is that the denial of a
motion to dismiss cannot be questioned in a special civil action for certiorari which is a
remedy designed to correct errors of jurisdiction and not errors of judgment. Neither can
a denial of a motion to dismiss be the subject of an appeal unless and until a final
judgment or order is rendered. In order to justify the grant of the extraordinary remedy
of certiorari, the denial of the motion to dismiss must have been tainted with grave abuse
of discretion amounting to lack or excess of jurisdiction. 19
At the core of the present petition is the question of whether the trial courts denial of
petitioners motion to dismiss on the ground that "[T]here are justiciable questions raised
in the pleadings of the herein parties which are proper subject of a full blown
trial"20 contravenes Sec. 3, Rule 16 of the Rules and constitutes grave abuse of
discretion on the part of the trial court.
Sec. 3, Rule 16 of the Rules provides:
CIVIL PROCEDURE CASES Motions (Rule 12, 15 & 16)
Sec. 3. Resolution of motion.After the hearing, the court may dismiss the action or
claim, deny the motion or order the amendment of the pleading.
The court shall not defer the resolution of the motion for the reason that the ground relied
upon is not indubitable.
In every case, the resolution shall state clearly and distinctly the reasons therefor.
Under this provision, there are three (3) courses of action which the trial court may take
in resolving a motion to dismiss, i.e., to grant, to deny, or to allow amendment of the
pleading. Deferment of the resolution of a motion to dismiss if the ground relied upon is
not indubitable is now disallowed in view of the provision 21 requiring presentation of all
available arguments and evidence. Thus, there is no longer any need to defer action until
the trial as the evidence presented, and such additional evidence as the trial court may
require, would already enable the trial court to rule upon the dubitability of the ground
alleged.22
Further, it is now specifically required that the resolution on the motion shall clearly and
distinctly state the reasons therefor. This proscribes the common practice of perfunctorily
dismissing the motion for "lack of merit." Such cavalier dispositions can often pose
difficulty and misunderstanding on the part of the aggrieved party in taking recourse
therefrom and likewise on the higher court called upon to resolve the same, usually
on certiorari.23
The questioned order of the trial court denying the motion to dismiss with a mere
statement that there are justiciable questions which require a full blown trial falls short of
the requirement of Rule 16 set forth above. Owing to the terseness of its expressed
justification, the challenged order ironically suffers from undefined breadth which is a
hallmark of imprecision. With its unspecific and amorphous thrust, the issuance is
inappropriate to the grounds detailed in the motion to dismiss.
While the requirement to state clearly and distinctly the reasons for the trial courts
resolutory order under Sec. 3, Rule 16 of the Rules does call for a liberal interpretation,
especially since jurisprudence dictates that it is decisions on cases submitted for
decision that are subject to the stringent requirement of specificity of rulings under Sec.
1, Rule 3624 of the Rules, the trial courts order in this case leaves too much to the
imagination.
35

It should be noted that petitioner raised several grounds in his motion to dismiss, i.e., bar
by prior judgment or by the statute of limitations, lack of capacity to sue, lack of cause of
action, and non-payment of docket fees.
Specifically, petitioner sought the dismissal of the complaint, arguing as follows:
A. Plaintiffs claims are barred by a prior judgment or by the statute of limitations (Rule
16, Sec. 1(f))
.
5. Plaintiffs now raise the issue that Cayetano Ludo, allegedly then "in
failing health" was unduly influenced by the defendant to execute a
"simulated will" to cheat the government of enormous amounts of estate
and inheritance taxes.
6. Plaintiffs may no longer do so, for, subject to the right to appeal, the
allowance of a will is conclusive as to its due execution, Rule 75, Sec. 1.
"Due execution" settles the extrinsic validity of the will, i.e., whether the
testator, being of sound mind freely executed the will in accordance
with the formalities by law.
1vvphi1.nt
7. It was conclusively established by the allowance of the will, which
plaintiffs did not appeal, that the following circumstances
were not present:
Rule 76, Sec. 9
(b) the testator was insane, or otherwise mentally incapable to make a
will, at the time of its execution;
(c) (the will) was executed under duress, or the influence of fear, or
threats;
(d) (the will) was procured by undue and improper pressure and
influence, on the part of the beneficiary, or of some other person for his
benefit;
8. The foregoing are the precise sort of questions and issues plaintiffs Nabua and
her children are illicitly seeking to try by independent action in a different sala.
CIVIL PROCEDURE CASES Motions (Rule 12, 15 & 16)
Why are they doing this? Because the time for them to bring their claims in the
probate court has prescribed. The judicial decree of distribution vests title in the
distributees and any objections thereto should be raised in a seasonable
appeal, otherwise it will have binding effect like any other judgment in rem.
....
B. Plaintiffs have no legal capacity to sue and/or do not have a cause of action (Rule 16,
Secs. 1(d) and/or 1(g))
12. The following documents reveal that the plaintiff Nabua could never have
been the common-law wife that she claims to be, because Cayetano Ludo was
married to someone else:
(a) Petition for Naturalization by Cayetano Ludo filed in 1946, wherein he
declares in paragraph FIFTH that he is married to Uy Ching Gee (ANNEX
"J");
(b) Order of the Court of First Instance dated June 7, 1949, wherein it is
stated that Cayetano Ludo has established in open court that he is
married to Uy Ching Gee, a native of Amoy, China, who likewise lived
with him in the Philippines and that they have three legitimate children
born 1937, 1939 and 1942 (ANNEX "K");
(c) Identification Certificate No. 5697 issued by the Bureau of Immigration
to Liong Cheng on November 18, 1957, also known as Visitacion Uy
Ching Gui, recognizing her as a citizen of the Philippines being the lawful
wife of Cayetano Ludo (ANNEX "L");
(d) Death Certificate of Visitacion Uy dated August 7, 1969, wherein it is
indicated that her civil status is married and the surviving spouse is
Cayetano Ludo (ANNEX "M");
(e) Death Certificate of Cayetano Ludo dated July 16, 1986, wherein it is
indicated that his surviving spouse is Florame delos Reyes Ludo (ANNEX
"B").
13. Plaintiffs-children of Nabua do not have legal capacity or cause of action
because they are not the real parties in interest.
36

13. [sic] Their distributive share in the estate of Cayetano Ludo having been
assigned to Ludo and LuYm Corporation (ANNEX "G"), plaintiffs-children of
Nabua are not real parties in interest; Ludo & LuYm Corp. is . Every
CIVIL PROCEDURE CASES Motions (Rule 12, 15 & 16)
However, while it was error for the appellate court to rule that the trial court did not
commit grave abuse of discretion in denying petitioners motion to dismiss, it does not
necessarily follow that the motion to dismiss should have been granted. The instant
l^vvphi1.net

action must be prosecuted or defended in the name of the real party in interest.
....
C. Fraud and Equity
14. The "fraud" (confused by plaintiffs to mean undue influence) of "imposing" a
"stimulated will" on Cayetano Ludo has been conclusively negated by the
allowance of the will, as provided in Rule 75, Sec. 1, above discussed.
15. Furthermore, an action for fraud prescribes 4 years from the execution of the
"fraudulent" or "simulated will," which was long ago in this case.
16. But more important than any of the foregoing is that plaintiffs who participated
in the probate proceedings and signed the settlement are precluded by "dirty
hands" from claiming relief.
petition raises significant factual questions as regards petitioners claim that
the Amended Complaint should have been dismissed which are properly addressed to
the trial court. Moreover, it cannot be gainsaid that the trial court should be given the
opportunity to correct itself by evaluating the evidence, applying the law and making an
appropriate ruling.27 A remand of the case to the trial court for further proceedings is,
therefore, in order.
WHEREFORE, the petition is GRANTED in part. The Decision of the Court of Appeals
dated August 20, 2003 sustaining the trial courts denial of petitioners motion to dismiss,
as well as its Resolution dated December 16, 2003 denying reconsideration, is
REVERSED and SET ASIDE. The case is REMANDED to the Regional Trial Court of
Cebu City for further proceedings to resolve anew with deliberate dispatch the motion to
dismiss in accordance with Section 3, Rule 16 of the 1997 Rules of Civil Procedure as
elucidated in this Decision.
SO ORDERED.

17. By their own admission (to which they are bound by Rule 130, Sec. 26),
plaintiffs were parties to a settlement pursuant to a fraudulent "simulated will"
which they portrayed as a massive scheme to defraud the government of estate
and inheritance taxes.

. . . . 25 (Emphases in the original.)

Having raised substantial grounds for dismissal, the trial court should have, at the very
least, specified which of these grounds require a full-blown trial. This would have enabled
the defendant to determine the errors that should be the subject of his motion for
reconsideration or petition for certiorari, and given the appellate court sufficient basis for
determining the propriety of the denial of the motion to dismiss.

In this regard, judges should be reminded to take pains in crafting their orders, stating
therein clearly and comprehensively the reasons for their issuance, which are necessary
for the full understanding of the action taken.26

Accordingly, considering that the order of the trial court is a patent nullity for failure to
comply with a mandatory provision of the Rules, petitioner was correct in directly
assailing the order on certiorari before the Court of Appeals. 1awphi1.nt

37

G.R. No. 185922 January 15, 2014
HEIRS OF DR. MARIANO FAVIS SR. represented by their co-heirs and Attorneys-in-
Fact MERCEDES A. FAVIS and NELLY FAVIS- VILLAFUERTE, Petitioners, vs. JUANA
GONZALES, her son MARIANO G. FAVIS, MA. THERESA JOANA D. FAVIS, JAMES
MARK D. FAVIS, all minors represented herein by their parents SPS. MARIANO
FAVIS and LARCELITA D. FAVIS, Respondents.
Before this Court is a petition for review assailing the 10 April 2008 Decision and 71
January 2009 Resolution of the Court of Appeals in CA-G.R. CV No. 86497 dismissing
2
petitioners complaint for annulment of the Deed of Donation for failure to exert earnest
efforts towards a compromise.
Dr. Mariano Favis, Sr. (Dr. Favis) was married to Capitolina Aguilar (Capitolina) with
whom he had seven children named Purita A. Favis, Reynaldo Favis, Consolacion Favis-
Queliza, Mariano A. Favis, Jr., Esther F. Filart, Mercedes A. Favis, and Nelly Favis-
Villafuerte. When Capitolina died in March 1944, Dr. Favis took Juana Gonzales (Juana)
as his common-law wife with whom he sired one child, Mariano G. Favis (Mariano).
When Dr. Favis and Juana got married in 1974, Dr. Favis executed an affidavit
acknowledging Mariano as one of his legitimate children. Mariano is married to Larcelita
D. Favis (Larcelita), with whom he has four children, named Ma. Theresa Joana D.
Favis, Ma. Cristina D. Favis, James Mark D. Favis and Ma. Thea D. Favis.
Dr. Favis died intestate on 29 July 1995 leaving the following properties:
1. A parcel of residential land located at Bonifacio St. Brgy. 1, Vigan, Ilocos Sur,
consisting an area of 898 square meters, more or less, bounded on the north by
Salvador Rivero; on the East by Eleutera Pena; on the South by Bonifacio St.,
and on the West by Carmen Giron; x x x;
2. A commercial building erected on the aforesaid parcel of land with an
assessed value of P126,000.00; x x x;
3. A parcel of residential land located in Brgy. VII, Vigan, Ilocos Sur, containing an
area of 154 sq. ms., more or less, bounded on the North by the High School Site;
on the East by Gomez St., on the South by Domingo [G]o; and on the West by
Domingo Go; x x x;
4. A house with an assessed value of P17,600.00 x x x;
CIVIL PROCEDURE CASES Motions (Rule 12, 15 & 16)
5. A parcel of orchard land located in Brgy. VI, Vigan, Ilocos Sur, containing an
area of 2,257 sq. ma. (sic) more or less, bounded on the North by Lot 1208; on
the East by Mestizo River; on the South by Lot 1217 and on the West by Lot
1211-B, 1212 and 1215 x x x. 3
Beginning 1992 until his death in 1995, Dr. Favis was beset by various illnesses, such as
kidney trouble, hiatal hernia, congestive heart failure, Parkinsons disease and
pneumonia. He died of "cardiopulmonary arrest secondary to multi-organ/system failure
secondary to sepsis secondary to pneumonia." 4
On 16 October 1994, he allegedly executed a Deed of Donation transferring and
5
conveying properties described in (1) and (2) in favor of his grandchildren with Juana.
Claiming that said donation prejudiced their legitime, Dr. Favis children with Capitolina,
petitioners herein, filed an action for annulment of the Deed of Donation, inventory,
liquidation and partition of property before the Regional Trial Court (RTC) of Vigan, Ilocos
Sur, Branch 20 against Juana, Spouses Mariano and Larcelita and their grandchildren as
respondents.
In their Answer with Counterclaim, respondents assert that the properties donated do not
form part of the estate of the late Dr. Favis because said donation was made inter vivos,
hence petitioners have no stake over said properties. 6
The RTC, in its Pre-Trial Order, limited the issues to the validity of the deed of donation
and whether or not respondent Juana and Mariano are compulsory heirs of Dr. Favis. 7
In a Decision dated 14 November 2005, the RTC nullified the Deed of Donation and
cancelled the corresponding tax declarations. The trial court found that Dr. Favis, at the
age of 92 and plagued with illnesses, could not have had full control of his mental
capacities to execute a valid Deed of Donation. Holding that the subsequent marriage of
Dr. Favis and Juana legitimated the status of Mariano, the trial court also declared Juana
and Mariano as compulsory heirs of Dr. Favis. The dispositive portion
reads:WHEREFORE, in view of all the foregoing considerations, the Deed of Donation
dated October 16, 1994 is hereby annulled and the corresponding tax declarations
issued on the basis thereof cancelled. Dr. Mariano Favis, Sr. having died without a will,
his estate would result to intestacy. Consequently, plaintiffs Heirs of Dr. Mariano Favis,
Sr., namely Purita A. Favis, Reynaldo A. Favis, Consolacion F. Queliza, Mariano A. Favis,
Jr., Esther F. Filart, Mercedes A. Favis, Nelly F. Villafuerte and the defendants Juana
Gonzales now deceased and Mariano G. Favis, Jr. shall inherit in equal shares in the
estate of the late Dr. Mariano Favis, Sr. which consists of the following:
38

1. A parcel of residential land located at Bonifacio St. Brgy. 1, Vigan City, Ilocos
Sur, consisting an area of 89 sq. meters more or less, bounded on the north by
Salvador Rivero; on the East by Eleutera Pena; on the South by Bonifacio St.,
and on the West by Carmen Giron;
2. A commercial building erected on the aforesaid parcel of land with an
assessed value of P126,000.00;
3. One-half (1/2) of the house located in Brgy. VI, Vigan City, Ilocos Sur[,]
containing an area of 2,257 sq. meters more or less, bounded on the north by Lot
1208; on the east by Mestizo River; on the South by Lot 1217 and on the West
by Lot 1211-B, 1212 and 1215.
4. The accumulated rentals of the new Vigan Coliseum in the amount of One
Hundred Thirty [Thousand] (P130,000.00) pesos per annum from the death of Dr.
Mariano Favis, Sr. 8
Respondents interposed an appeal before the Court of Appeals challenging the trial
courts nullification, on the ground of vitiated consent, of the Deed of Donation in favor of
herein respondents. The Court of Appeals ordered the dismissal of the petitioners
nullification case. However, it did so not on the grounds invoked by herein respondents
as appellant.
The Court of Appeals motu proprio ordered the dismissal of the complaint for failure of
petitioners to make an averment that earnest efforts toward a compromise have been
made, as mandated by Article 151 of the Family Code. The appellate court justified its
order of dismissal by invoking its authority to review rulings of the trial court even if they
are not assigned as errors in the appeal.
Petitioners filed a motion for reconsideration contending that the case is not subject to
compromise as it involves future legitime.
The Court of Appeals rejected petitioners contention when it ruled that the prohibited
compromise is that which is entered between the decedent while alive and compulsory
heirs. In the instant case, the appellate court observed that while the present action is
between members of the same family it does not involve a testator and a compulsory
heir. Moreover, the appellate court pointed out that the subject properties cannot be
considered as "future legitime" but are in fact, legitime, as the instant complaint was filed
after the death of the decedent.
CIVIL PROCEDURE CASES Motions (Rule 12, 15 & 16)
Undaunted by this legal setback, petitioners filed the instant petition raising the following
arguments:
1. The Honorable Court of Appeals GRAVELY and SERIOUSLY ERRED in
DISMISSING the COMPLAINT.
2. Contrary to the finding of the Honorable Court of Appeals, the verification of
the complaint or petition is not a mandatory requirement.
3. The Honorable Court of Appeals seriously failed to appreciate that the filing of
an intervention by Edward Favis had placed the case beyond the scope of Article
151 of the Family Code.
4. Even assuming arguendo without admitting that the filing of intervention by
Edward Favis had no positive effect to the complaint filed by petitioners, it is still
a serious error for the Honorable Court of Appeals to utterly disregard the fact
that petitioners had substantially complied with the requirements of Article 151 of
the Family Code.
5. Assuming arguendo that petitioners cannot be construed as complying
substantially with Article 151 of the Family Code, still, the same should be
considered as a non-issue considering that private respondents are in estoppel.
6. The dismissal of the complaint by the Honorable Court of Appeals amounts to
grave abuse of discretion amounting to lack and excess of jurisdiction and a
complete defiance of the doctrine of primacy of substantive justice over strict
application of technical rules.
7. The Honorable Court of Appeals gravely and seriuosly erred in not affirming
the decision of the Court a quo that the Deed of Donation is void. 9
In their Comment, respondents chose not to touch upon the merits of the case, which is
the validity of the deed of donation. Instead, respondents defended the ruling the Court
of Appeals that the complaint is dismissible for failure of petitioners to allege in their
complaint that earnest efforts towards a compromise have been exerted.
The base issue is whether or not the appellate court may dismiss the order of dismissal
of the complaint for failure to allege therein that earnest efforts towards a compromise
have been made. The appellate court committed egregious error in dismissing the
complaint. The appellate courts decision hinged on Article 151 of the Family Code, viz:
39

Art. 151. No suit between members of the same family shall prosper unless it should
appear from the verified complaint or petition that earnest efforts toward a compromise
have been made, but that the same have failed. If it is shown that no such efforts were in
fact made, the case must be dismissed.
This rule shall not apply to cases which may not be the subject of compromise under the
Civil Code.
The appellate court correlated this provision with Section 1, par. (j), Rule 16 of the 1997
Rules of Civil Procedure, which provides:
Section 1. Grounds. Within the time for but before filing the answer to the complaint or
pleading asserting a claim, a motion to dismiss may be made on any of the following
grounds:
xxxx
(j) That a condition precedent for filing the claim has not been complied with.
The appellate courts reliance on this provision is misplaced. Rule 16 treats of the
grounds for a motion to dismiss the complaint. It must be distinguished from the grounds
provided under Section 1, Rule 9 which specifically deals with dismissal of the claim by
the court motu proprio. Section 1, Rule 9 of the 1997 Rules of Civil Procedure provides:
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.
Section 1, Rule 9 provides for only four instances when the court may motu proprio
dismiss the claim, namely: (a) lack of jurisdiction over the subject matter; (b) litis
pendentia ; (c) res judicata ; and (d) prescription of action. Specifically in Gumabon v.
10
Larin, cited in Katon v. Palanca, Jr., the Court held:
11 12
x x x [T]he motu proprio dismissal of a case was traditionally limited to instances when
the court clearly had no jurisdiction over the subject matter and when the plaintiff did not
appear during trial, failed to prosecute his action for an unreasonable length of time or
neglected to comply with the rules or with any order of the court. Outside of these
CIVIL PROCEDURE CASES Motions (Rule 12, 15 & 16)
instances, any motu proprio dismissal would amount to a violation of the right of the
plaintiff to be heard. Except for qualifying and expanding Section 2, Rule 9, and Section
3, Rule 17, of the Revised Rules of Court, the amendatory 1997 Rules of Civil Procedure
brought about no radical change. Under the new rules, a court may motu proprio dismiss
a claim when it appears from the pleadings or evidence on record that it has no
jurisdiction over the subject matter; when there is another cause of action pending
between the same parties for the same cause, or where the action is barred by a prior
judgment or by statute of limitations. x x x.
13
The error of the Court of Appeals is evident even if the consideration of the issue is kept
within the confines of the language of Section 1(j) of Rule 16 and Section 1 of Rule 9.
That a condition precedent for filing the claim has not been complied with, a ground for a
motion to dismiss emanating from the law that no suit between members from the same
family shall prosper unless it should appear from the verified complaint that earnest
efforts toward a compromise have been made but had failed, is, as the Rule so words, a
ground for a motion to dismiss. Significantly, the Rule requires that such a motion should
be filed "within the time for but before filing the answer to the complaint or pleading
asserting a claim." The time frame indicates that thereafter, the motion to dismiss based
on the absence of the condition precedent is barred. It is so inferable from the opening
sentence of Section 1 of Rule 9 stating that defense and objections not pleaded either in
a motion to dismiss or in the answer are deemed waived. There are, as just noted, only
four exceptions to this Rule, namely, lack of jurisdiction over the subject matter; litis
pendentia ; res judicata ; and prescription of action. Failure to allege in the complaint that
earnest efforts at a compromise has been made but had failed is not one of the
exceptions. Upon such failure, the defense is deemed waived.
It was in Heirs of Domingo Valientes v. Ramas cited in P.L. Uy Realty Corporation v.
14
ALS Management and Development Corporation where we noted that the second
15
sentence of Section 1 of Rule 9 does not only supply exceptions to the rule that defenses
not pleaded either in a motion to dismiss or in the answer are deemed waived, it also
allows courts to dismiss cases motu propio on any of the enumerated grounds. The tenor
of the second sentence of the Rule is that the allowance of a motu propio dismissal can
proceed only from the exemption from the rule on waiver; which is but logical because
there can be no ruling on a waived ground.
Why the objection of failure to allege a failed attempt at a compromise in a suit among
members of the same family is waivable was earlier explained in the case of Versoza v.
Versoza, a case for future support which was dismissed by the trial court upon the
16
ground that there was no such allegation of infringement of Article 222 of the Civil Code,
the origin of Article 151 of the Family Code. While the Court ruled that a complaint for
future support cannot be the subject of a compromise and as such the absence of the
40

required allegation in the complaint cannot be a ground for objection against the suit, the
decision went on to state thus:
The alleged defect is that the present complaint does not state a cause of action. The
proposed amendment seeks to complete it. An amendment to the effect that the
requirements of Article 222 have been complied with does not confer jurisdiction upon
the lower court. With or without this amendment, the subject-matter of the action remains
as one for support, custody of children, and damages, cognizable by the court below.
To illustrate, Tamayo v. San Miguel Brewery, Inc., allowed an amendment which "
17
merely corrected a defect in the allegation of plaintiff-appellants cause of action,
because as it then stood, the original complaint stated no cause of action." We there
ruled out as inapplicable the holding in Campos Rueda Corporation v. Bautista, that an
18
amendment cannot be made so as to confer jurisdiction on the court x x x. (Italics
supplied).
Thus was it made clear that a failure to allege earnest but failed efforts at a compromise
in a complaint among members of the same family, is not a jurisdictional defect but
merely a defect in the statement of a cause of action. Versoza was cited in a later case
as an instance analogous to one where the conciliation process at the barangay level
was not priorly resorted to. Both were described as a "condition precedent for the filing of
a complaint in Court." In such instances, the consequence is precisely what is stated in
19
the present Rule. Thus:
x x x The defect may however be waived by failing to make seasonable objection, in a
motion to dismiss or answer, the defect being a mere procedural imperfection which does
not affect the jurisdiction of the court. (Underscoring supplied).
20
In the case at hand, the proceedings before the trial court ran the full course. The
complaint of petitioners was answered by respondents without a prior motion to dismiss
having been filed. The decision in favor of the petitioners was appealed by respondents
on the basis of the alleged error in the ruling on the merits, no mention having been
made about any defect in the statement of a cause of action. In other words, no motion
to dismiss the complaint based on the failure to comply with a condition precedent was
filed in the trial court; neither was such failure assigned as error in the appeal that
respondent brought before the Court of Appeals.
Therefore, the rule on deemed waiver of the non-jurisdictional defense or objection is
wholly applicable to respondent. If the respondents as parties-defendants could not, and
1wphi1
did not, after filing their answer to petitioners complaint, invoke the objection of absence
CIVIL PROCEDURE CASES Motions (Rule 12, 15 & 16)
of the required allegation on earnest efforts at a compromise, the appellate court
unquestionably did not have any authority or basis to motu propio order the dismissal of
petitioners complaint.
Indeed, even if we go by the reason behind Article 151 of the Family Code, which
provision as then Article 222 of the New Civil Code was described as "having been given
more teeth" by Section 1(j), Rule 16 of the Rule of Court, it is safe to say that the
21
purpose of making sure that there is no longer any possibility of a compromise, has been
served. As cited in commentaries on Article 151 of the Family Code
This rule is introduced because it is difficult to imagine a sudden and more tragic
spectacle than a litigation between members of the same family. It is necessary that
every effort should be made towards a compromise before a litigation is allowed to breed
hate and passion in the family. It is known that a lawsuit between close relatives
generates deeper bitterness than between strangers. 22
The facts of the case show that compromise was never an option insofar as the
respondents were concerned. The impossibility of compromise instead of litigation was
shown not alone by the absence of a motion to dismiss but on the respondents
insistence on the validity of the donation in their favor of the subject properties. Nor could
it have been otherwise because the Pre-trial Order specifically limited the issues to the
validity of the deed and whether or not respondent Juana and Mariano are compulsory
heirs of Dr. Favis. Respondents not only confined their arguments within the pre-trial
order; after losing their case, their appeal was based on the proposition that it was error
for the trial court to have relied on the ground of vitiated consent on the part of Dr. Favis.
The Court of Appeals ignored the facts of the case that clearly demonstrated the refusal
by the respondents to compromise. Instead it ordered the dismissal of petitioners
complaint on the ground that it did not allege what in fact was shown during the trial. The
error of the Court of Appeals is patent.
Unfortunately for respondents, they relied completely on the erroneous ruling of the
Court of Appeals even when petitioners came to us for review not just on the basis of
such defective motu propio action but also on the proposition that the trial court correctly
found that the donation in question is flawed because of vitiated consent. Respondents
did not answer this argument. The trial court stated that the facts are:
x x x To determine the intrinsic validity of the deed of donation subject of the action for
annulment, the mental state/condition of the donor Dr. Mariano Favis, Sr. at the time of
its execution must be taken into account. Factors such as his age, health and
41

environment among others should be considered. As testified to by Dr. Mercedes Favis,
corroborated by Dr. Edgardo Alday and Dra. Ofelia Adapon, who were all presented as
expert witnesses, Dr. Mariano Favis, Sr. had long been suffering from Hiatal Hernia and
Parkinsons disease and had been taking medications for years. That a person with
Parkinsons disease for a long time may not have a good functioning brain because in
the later stage of the disease, 1/3 of death develop from this kind of disease, and or
dementia. With respect to Hiatal Hernia, this is a state wherein organs in the abdominal
cavity would go up to the chest cavity, thereby occupying the space for the lungs causing
the lungs to be compromised. Once the lungs are affected, there is less oxygenation to
the brain. The Hernia would cause the heart not to pump enough oxygen to the brain and
the effect would be chronic, meaning, longer lack of oxygenation to the brain will make a
person not in full control of his faculties. Dr. Alday further testified that during his stay with
the house of Dr. Mariano Favis, Sr. (1992-1994), he noticed that the latter when he goes
up and down the stairs will stop after few seconds, and he called this pulmonary cripple
a very advanced stage wherein the lungs not only one lung, but both lungs are
compromised. That at the time he operated on the deceased, the left and right lung were
functioning but the left lung is practically not even five (5%) percent functioning since it
was occupied by abdominal organ. x x x.
Dr. Mariano Favis, Sr. during the execution of the Deed of Donation was already 92
years old; living with the defendants and those years from 1993 to 1995 were the critical
years when he was sick most of the time. In short, hes dependent on the care of his
housemates particularly the members of his family. It is the contention of the defendants
though that Dr. Mariano Favis, Sr. had full control of his mind during the execution of the
Deed of Donation because at that time, he could go on with the regular way of life or
could perform his daily routine without the aid of anybody like taking a bath, eating his
meals, reading the newspaper, watching television, go to the church on Sundays,
walking down the plaza to exercise and most importantly go to the cockpit arena and bet.
Dr. Ofelia Adapon, a neurology expert however, testified that a person suffering from
Parkinsons disease when he goes to the cockpit does not necessarily mean that such
person has in full control of his mental faculties because anyone, even a retarded
person, a person who has not studied and have no intellect can go to the cockpit and
bet. One can do everything but do not have control of his mind. x x x That Hiatal Hernia
creeps in very insidiously, one is not sure especially if the person has not complained
and no examination was done. It could be there for the last time and no one will know. x
x x.
CIVIL PROCEDURE CASES Motions (Rule 12, 15 & 16)
The Deed of Donation in favor of the defendants Ma. Theresa, Joana D. Favis, Maria
Cristina D. Favis, James Mark D. Favis and Maria Thea D. Favis, all of whom are the
children of Mariano G. Favis, Jr. was executed on [16 October] 1994, seven (7) months
after Dra. Mercedes Favis left the house of Dr. Favis, Sr. at Bonifacio St., Vigan City,
Ilocos Sur, where she resided with the latter and the defendants.
Putting together the circumstances mentioned, that at the time of the execution of the
Deed of Donation, Dr. Mariano Favis, Sr. was already at an advanced age of 92, afflicted
with different illnesses like Hiatal hernia, Parkinsons disease and pneumonia, to name
few, which illnesses had the effects of impairing his brain or mental faculties and the
deed being executed only when Dra. Mercedes Favis had already left his fathers
residence when Dr. Mariano Favis, Sr. could have done so earlier or even in the
presence of Dra. Mercedes Favis, at the time he executed the Deed of Donation was not
in full control of his mental faculties. That although age of senility varies from one person
to another, to reach the age of 92 with all those medications and treatment one have
received for those illnesses, yet claim that his mind remains unimpaired, would be
unusual. The fact that the Deed of Donation was only executed after Dra. Mercedes
Favis left his father's house necessarily indicates that they don't want the same to be
known by the first family, which is an indicia of bad faith on the part of the defendant, who
at that time had influence over the donor.23
The correctness of the finding was not touched by the Court of Appeals. The
respondents opted to rely only on what the appellate court considered, erroneously
though, was a procedural infirmity. The trial court's factual finding, therefore, stands
unreversed; and respondents did not provide us with any argument to have it reversed.
The issue of the validity of donation was fully litigated and discussed by the trial court.
Indeed, the trial court's findings were placed at issue before the Court of Appeals but the
appellate court chose to confine its review to the procedural aspect. The judgment of the
Court of Appeals, even if it dealt only with procedure, is deemed to have covered all
issues including the correctness of the factual findings of the trial court. Moreover,
remanding the case to the Court of Appeals would only constitute unwarranted delay in
the final disposition of the case.
WHEREFORE, the Decision of the Court of Appeals is REVERSED and SET ASIDE and
the Judgment of the Regional Trial Court of Vigan, Ilocos Sur, Branch 20 is AFFIRMED.
SO ORDERED.
42
CIVIL PROCEDURE CASES Motions (Rule 12, 15 & 16)

43