2. Azajar vs. CA Nov. 10, 1986

FACTS:

1. Azajar purchased thru the agent of Cham Samco 100 kegs of nails of various sizes and paid P18,000 in full. However, Cham Samco only delivered a part of the quantity ordered. Azajar filed a complaint before the CFI of Cam Sur.

2. Instead of submitting an answer, Samco filed a motion to dismiss on two grounds: failure of the complaint to state a cause of action and that venue was improperly laid.

3. The motion to dismiss contained a notice addressed to the Clerk of Court.

4. Contending that such notice was fatally defective, Azajar filed a motion to declare Samco in default, which the court granted. Azajar was allowed to present evidence ex parte and the court rendered judgment against Samco.

5. The TC justified its order of default in this wise: that instead of filling an answer to the complaint, Samco filed a motion to dismiss which is not a motion at all because the “notice” is directed to the Clerk of Court instead of the party concerned (as required by Sec.5, Rule 15, RC) and is without the requisite notice of hearing directed to the CC and not to the parties, and merely stating that the same be submitted for resolution. It is without the requisite notice of time and place of hearing.

6. Aggrieved, Samco went to CA for recourse, but the CA affirmed the decision of the TC. However, on motion for reconsideration, CA reversed itself and declared that technicalities should be brushed aside so that Samco can be given a day in court.

ISSUE: WON the failure of Cham Samco to set its motion to dismiss for hearing on a specified date and time and for not addressing the same to the party interested is fatal to his cause.

HELD: Yes. Although the Court sided with CA that technicalities should be set aside to Samco to be afforded with his day in court.

1. The law explicitly requires that notice of motion shall be served by the appellant to all parties concerned at least 3 days before the hearing, together with a copy of the motion, and of any affidavits and other papers accompanying it; and that notices shall be directed to the parties concerned stating the time and place for the hearing of the motion. Failure to comply with the requirement is a fatal flaw.

2. Such notice is required to avoid surprises upon the opposite party and give the latter time to study and meet the arguments of the motion as well as to determine or make determinable the time of submission of the motion for resolution.

3. Without the notice, the occasion would not arise to determine with reasonable certitude whether and within what time the adverse party would respond to the motion, and when the motion might already be resolved by the Court.

4. The duty to give that notice is imposed on the movant and not on the court.

3. G.R. No. 163785 December 27, 2007

KKK FOUNDATIONVS. HON. ADELINA CALDERON-BARGAS

FACTS:On March 1, 2002, petitioner, filed a complaint for Annulment of Extra-judicial Foreclosure of Real Estate Mortgage and/or Nullification of Sheriff’s Auction Sale and Damages with Prayer for the Issuance of TRO and/or Writ of Preliminary Injunction.3 Petitioner alleged that: (1) the auction sale was made with fraud and/or bad faith since there was no public bidding; (2) the sheriff did not post the requisite Notice of Sheriff’s Sale; (3) the petition for extrajudicial foreclosure was fatally defective since it sought to foreclose properties of two different entities; (4) the foreclosed properties were awarded and sold to Imelda A. Angeles for an inadequate bid of only P4,181,450; and (5) the auction sale involved eight parcels of land covered by individual titles but the same were sold en masse. On March 7, 2002, Judge Calderon-Bargas issued TRO preventing Angeles from consolidating her ownership to the foreclosed properties. On even date, petitioner and Angeles executed a Compromise Agreement wherein petitioner agreed to pay Angeles the bid price of the eight parcels of land within 20 days. The parties then filed a Motion to Approve Compromise Agreement.On April 1, 2002, petitioner filed an Urgent Ex-Parte Motion to Recall Compromise Agreement since the other property owner and other trustees of petitioner were not consulted prior to the signing of the agreement. Angeles opposed the motion.Judge Calderon-Bargas issued an Order stating that Record shows that the Urgent Ex-Parte Motion to Recall Compromise Agreement and Motion to Approve Compromise Agreement both failed to comply with Sec[s]. 4 and 5, Rule 15 of the Civil Procedure. Both proceedings have no specific date of hearing. The reason why the Motion to Approve Compromise Agreement up to now has not yet been acted upon was that it has no date of hearing.Thus, these are considered mere scrap[s] of paper. The TC approved the Compromise Agreement. Angeles then moved for the issuance of a writ of execution. The TC required petitioner to comment on the motion within ten (10) days.TC directed the Clerk of Court to issue a writ of execution. On the same date, the trial court received petitioner’s Motion for Extension of Time to File Comment with Entry of Appearance which was denied on October 10, 2002. Petitioner then moved for reconsideration of the October 3, 2002 Order.Petitioner came to the Court of Appeals via petition for certiorari. The CA denied the petition and ruled that petitioner was not deprived of due process when the trial court issued the October 3, 2002 and the October 10, 2002 Orders since it was given sufficient time to file its comment. The appellate court did not rule on the second and third issues after noting that petitioner’s motion for reconsideration of the October 3, 2002 Order had not yet been resolved by the trial court. It did not resolve the issues even after the trial court denied petitioner’s motion for reconsideration on December 12, 2003,11 ratiocinating that the trial court’s denial of petitioner’s motion for reconsideration did not operate to reinstate the petition because at the time it was filed, petitioner had no cause of action.Hence , this petition.

ISSUES: WON the trial court seriously erred: (1) in issuing the October 3, 2002 and the October 10, 2002 Orders without awaiting petitioner’s comment; (2) in granting the Motion for Issuance of Writ of Execution although it lacked the requisite notice of hearing; and (3) in issuing the writ of execution since it varied the tenor of the decision dated June 28, 2002.

HELD:

On the first issue, we note that in its September 9, 2002 Order, the trial court gave petitioner ten (10) days to file its comment to Angeles’s Motion for Issuance of Writ of Execution. While petitioner claims that it received the Order only on September 21, 2002, Angeles counters that petitioner received it on September 12, 2002. We are more inclined to believe Angeles’s allegation since the trial court itself declared in its Order dated October 10, 2002 that the Order dated September 9, 2002 was personally served upon petitioner on September 12, 2002.13 Thus, petitioner had until September 22, 2002 within which to file its comment or to request for an extension of time. Consequently, petitioner’s motion for extension and comment were not seasonably filed and such procedural lapse binds petitioner.

Anent the second issue, a motion which does not meet the requirements of Sections 4 and 5 of Rule 1514 of the Rules of Court is considered a worthless piece of paper, which the Clerk of Court has no right to receive and the trial court has no authority to act upon. Service of a copy of a motion containing a notice of the time and the place of hearing of that motion is a mandatory requirement, and the failure of movants to comply with these requirements renders their motions fatally defective. However, there are exceptions to the strict application of this rule. These exceptions are: (1) where a rigid application will result in a manifest failure or miscarriage of justice especially if a party successfully shows that the alleged defect in the questioned final and executory judgment is not apparent on its face or from the recitals contained therein; (2) where the interest of substantial justice will be served; (3) where the resolution of the motion is addressed solely to the sound and judicious discretion of the court; and (4) where the injustice to the adverse party is not commensurate with the degree of his thoughtlessness in not complying with the procedure prescribed.A notice of hearing is an integral component of procedural due process to afford the adverse parties a chance to be heard before a motion is resolved by the court. Through such notice, the adverse party is given time to study and answer the arguments in the motion. Records show that while Angeles’s Motion for Issuance of Writ of Execution contained a notice of hearing, it did not particularly state the date and time of the hearing. However, scstill find that petitioner was not denied procedural due process. Upon receiving the Motion for Issuance of Writ of Execution, the trial court issued an Order dated September 9, 2002 giving petitioner ten (10) days to file its comment. The trial court ruled on the motion only after the reglementary period to file comment lapsed. Clearly, petitioner was given time to study and comment on the motion for which reason, the very purpose of a notice of hearing had been achieved.Procedural due process is not based solely on a mechanical and literal application that renders any deviation inexorably fatal. Instead, procedural rules are liberally construed to promote their objective and to assist in obtaining a just, speedy and inexpensive determination of any action and proceeding.

On the last issue, SC note that the Compromise Agreement approved by the trial court in its Decision dated June 28, 2002 merely provided that petitioner would pay Angeles the bid price of P5,500,000, for the eight parcels of land subject of the

auction sale, within twenty (20) days. Upon payment, Angeles would execute a Certificate of Deed of Redemption and a Deed of Cancellation of Mortgage, and surrender to petitioner the titles to the eight parcels of land. Nevertheless, when the trial court issued the writ of execution, the writ gave Sheriff Bisnar the option "to allow the consolidation of the subject real properties in favor of the defendant Imelda Angeles."

Undoubtedly, the writ of execution imposed upon petitioner an alternative obligation which was not included or contemplated in the Compromise Agreement. While the complaint originally sought to restrain Angeles from consolidating her ownership to the foreclosed properties, that has been superseded by the Compromise Agreement. Therefore, the writ of execution which directed Sheriff Bisnar to "cause the Register of Deeds of Morong, Rizal, to allow the consolidation of the subject real properties in favor of the defendant Imelda Angeles" is clearly erroneous because the judgment under execution failed to provide for consolidation. Because the writ of execution varied the terms of the judgment and exceeded them, it had no validity. The writ of execution must conform to the judgment which is to be executed, as it may not vary the terms of the judgment it seeks to enforce. Neither may it go beyond the terms of the judgment sought to be executed. Where the execution is not in harmony with the judgment which gives it life and exceeds it, it has pro tanto no validity.20

WHEREFORE, the instant petition is PARTIALLY GRANTED. The Decision dated November 28, 2003 and the Resolution dated May 26, 2004 of the Court of Appeals in CA-G.R. SP No. 73965 are MODIFIED such that the writ of execution issued on October 11, 2002 by Judge Adelina Calderon-Bargas is declared NULL and VOID.

SC ordered that the case be REMANDED to the Regional Trial Court of Morong, Rizal, Branch 78, which is hereby ORDERED to issue another writ of execution against petitioner KKK Foundation, Inc., in conformity with the Decision dated June 28, 2002 of the trial court. This is without prejudice to filing a new motion for consolidation by respondent Angeles.

Rule 12 – Motions for Bill of Particulars

1. SANTOS V. LIWAG (G.R. No. L-24238 November 28, 1980)

DOCTRINE: The allowance of a motion for a more definite statement or bill of particulars rests within the sound judicial discretion of the court and, as usual in matters of a discretionary nature, the ruling of the trial court in that regard will not be reversed unless there has been a palpable abuse of discretion or a clearly erroneous order. EMERGENCY RECIT (Very short case – please refer to the facts below)

FACTS: • June 8, 1964: Jose Santos filed a complaint against Lorenzo Liwag with the CFI of Manila, which seeks to annul certain documents which were alleged to be done with malice, threats, false pretenses, machination, misrepresentations, and other fraudulent means, with damages and costs.

• July 4, 1964: Santos filed a motion asking the court to order Liwag (petitioner) to submit bill of particulars on certain allegations of the complaint believed to be vague

and conflicting, and that he be informed of the charges filed against him to prepare an intelligent and proper pleading necessary and appropriate in the premises

• Liwag opposed the said motion and said that the allegations in the complaint filed are sufficient and contains the facts needed for a cause of action to exist and Santos’ motion is indeed evidentiary in nature Trial Court

• Granted the motion and directed the plaintiff to submit a bill of particulars with respect to the paragraphs specified in defendant’s motion

• When plaintiff failed to comply with the order of the court, the complaint was dismissed with costs against the plaintiff

ISSUE: 1. WON the trial court erred in granting the motion for bill of particulars filed by Liwag.

HELD/RATIO: 1. NO. • BILL OF PARTICULARS ARE DISCRETIONARY UPON THE COURTS o The allowance of a motion for a more definite statement or bill of particulars rests within the sound judicial discretion of the court and, as usual in matters of a discretionary nature, the ruling of the trial court in that regard will not be reversed unless there has been a palpable abuse of discretion or a clearly erroneous order. o Complaint was indeed drawn and suffers from vagueness and generalization to enable the defendant properly to prepare a responsive pleading and to clarify issues and aid the court in an orderly and expeditious disposition in the case.

• RULES ON BILL OF PARTICULARS ON THE GROUND OF VAGUE COMPLAINT o If an action (like this case) is one for the annulment of documents that have been allegedly executed by reason of deceit, machination, false pretenses, misrepresentation, threats, and other fraudulent means. o Deceit, machination, false pretenses, misrepresentation, and threats, however, are largely conclusions of law and mere allegations thereof without a statement of the facts to which such terms have reference are not sufficient. The allegations must state the facts and circumstances from which the fraud, deceit, machination, false pretenses, misrepresentation, and threats may be inferred as conclusions. § In his complaint, the appellant merely averred that all the documents sought to be annulled were all executed through the use of deceits, machination, false pretenses, misrepresentations, threats, and other fraudulent means without the particular-facts on which alleged fraud, deceit, machination, or misrepresentations are predicated.

• FAILURE TO COMPLY WITH A COURT ORDER TO FILE OF A BILL OF PARTICULARS RESULTS IN DISMISSAL OF COMPLAINT o Hence, it was proper for the trial court to grant the defendant's motion for a bill of particulars, and when the plaintiff failed to comply with the order, the trial court correctly dismissed the complaint.

2. FAUSTA AGCANAS, JUAN MIGUEL, JUANITA MIGUEL, assisted by her husband ULPIANO PASION,  

assisted by her husband JUAN PASCUAL vs. BRUNO MERCADO and ANTONIO DASALLA

Facts:

1. On November 25, 1956 plaintiffs filed this action to recover portions of a parcel of land in Isabela, and damages. Under date of December 4, 1956 defendants filed a motion for a bill of particulars, with notice of hearing on December 8, but since the motion was actually received in court only on December 12 the court set it for hearing on December 22.

2. On December 17, however, defendants filed a motion to dismiss the complaint, with a prayer that consideration of their motion for a bill of particulars be held in abeyance pending resolution of their motion to dismiss. On December 22, 1956, the date set by the court for the hearing of the motion for a bill of particulars and by defendants for the hearing of their motion to dismiss, the court issued an order postponing "consideration" of both motions to December 29.

3. On March 7, 1957 the court denied the motion to dismiss and ordered defendants "to answer the complaint within the reglementary period provided for by the Rules of Court." Hearing of the case on the merits was set for October 29, 1957, notice of which was duly received by defendants. Defendants not having filed their answer, plaintiffs, on October 17, 1957, moved to have them declared in default. On the same day the court issued the order of default together with another order commissioning the clerk of court to receive plaintiff's evidence.

4. On October 21, 1957 defendants moved to cancel the hearing scheduled for October 29, on two grounds one of which was that their motion for a bill of particulars had not yet been resolved. The motion to cancel was set for hearing on October 26, 1957. When defendants arrived in court on that day they learned that an order of default had been issued, so they immediately filed a motion asking that the same be set aside that their pending motion for a bill of particulars be resolved and that they be given a reasonable period thereafter within which to file their answer to the complaint.

5. On December 13, 1957 the court denied the motion and rendered its decision in favor of plaintiffs and against defendants.

6. On January 4, 1958 it denied defendants' motion for reconsideration of the order of denial. On January 24, defendants filed their record on appeal (to this Court from the order of December 13, 1957), but as they subsequently filed a petition for relief from the judgment by default, they asked that consideration and approval of their record on appeal be held in abeyance until said petition had been resolved. The request was granted. Defendant's petition for relief, which was filed on January 28, 1958, was denied on March 21, as was also, on September 20, 1958 their motion for reconsideration of the order of denial.

7. On October 4, 1958 the court denied likewise their motion for a writ of preliminary injunction to restrain execution of the judgment by default. Hence, this appeal.

Issue: Whether or not upon denial of a defendants' motion to dismiss the reglementary period within which to file an answer resumes running even though the motion for a bill of particulars of the same defendants is still pending and unresolved.

Held:

Both a motion to dismiss and a motion for a bill of particulars interrupt the time to file a responsive pleading. In the case of a motion to dismiss, the period starts running against as soon as the movant receives a copy of the order of denial. In the case of a motion for a bill of particulars, the suspended period shall continue to run upon service on the movant of the bill of particulars, if the motion is granted, or of the notice of its denial, but in any event he shall have not less than five days within which to file his responsive pleading.

When appellants filed a motion to dismiss they requested that resolution of their previous motion for a bill of particulars be held in abeyance. This was but practical because if the court had granted the motion to dismiss, there would have been no need for a bill of particulars. Resolution of the motion for the purpose was necessary only in the event that court should deny, as it did, the motion to dismiss, in which case the period to file an answer remained suspended until the motion for a bill of particulars is denied or, if it is granted, until the bill is served on the moving party.

Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted and approved by this Honorable Court, without prejudice to the parties adducing other evidence to prove their case not covered by this stipulation of facts. 

No action having been taken thereon until the present, the period to answer has not yet expired. The lower court, therefore, erred in declaring appellants in defaults and in taking all the subsequent actions it did in the case.

The order of default issued and the decision rendered by the trial court are set aside and the case is remanded for further proceedings, pursuant to the Rules.

3. Salita vs Magtolis

Facts:

1. Erwin Espinosa, 32, and Joselita Salita, 22, were married at the Roman Catholic Church in Ermita, Manila.

2. They separated in fact in 1988. Subsequently, Erwin sued for annulment on the ground of Joselita’s psychological incapacity.

3. The petition for annulment was filed before the Regional Trial Court of Quezon City. Therein it is alleged that petitioner came to realize that respondent was psychologically incapacitated to comply with the essential marital obligations of their marriage, which incapacity existed at the time of the marriage although the same became manifest only thereafter."Edwin specified that at the time of their marriage, respondent (Joselita Salita) was psychologically incapacitated to comply with the essential marital obligations of their marriage in that she was un

able to understand and accept the demands made by his profession — that of a newly qualified Doctor of Medicine — upon petitioner’s time and efforts so that she frequently complained of his lack of attention to her even to her mother, whose intervention caused petitioner to lose his job.

4. Dissatisfied with the allegation in the petition, Joselita moved for a bill of particulars. She argued that the "assertion (in the Bill of Particulars) is a statement of legal conclusion made by petitioner’s counsel and not an averment of ‘ultimate facts,’ as required by the Rules of Court, from which such a conclusion may properly be inferred . . . ." 4 But finding the questioned Bill of Particulars adequate, the trial court issued an order upholding its sufficiency and directing Joselita to file her responsive pleading.

5. She filed a petition for certiorari before the Supreme Court but the SC referred it to the CA. The CA denied her petition.

Issue: WON the Bill of Particulars submitted by herein respondent is of sufficient definiteness or particularity as to enable herein petitioner to properly prepare her responsive pleading or for trial.

Held: Yes. A complaint only needs to state the "ultimate facts constituting the plaintiff’s cause or causes of action." 9 Ultimate facts has been defined as "those facts which the expected evidence will support." 10 As stated by private respondent, "[t]he term does not refer to the details of probative matter or particulars of evidence by which these material elements are to be established." It refers to "the facts which the evidence on the trial will prove, and not the evidence which will be required to prove the existence of those facts." And a motion for bill of particulars will not be granted if the complaint, while not very definite, nonetheless already states a sufficient cause of action. 11 A motion for bill of particulars may not call for matters which should form part of the proof of the complaint upon trial. Such information may be obtained by other means. 12

We sustain the view of respondent Court of Appeals that the Bill of Particulars filed by private respondent is sufficient to state a cause of action, and to require more details from private respondent would be to ask for information on evidentiary matters. Indeed, petitioner has already been adequately apprised of private respondent’s cause of action against her thus —

. . . . (she) was psychologically incapacitated to comply with the essential marital obligations of their marriage in that she was unable to understand and accept the demands made by his profession — that of a newly qualified Doctor of Medicine — upon petitioner’s time and efforts so that she frequently complained of his lack of attention to her even to her mother, whose intervention caused petitioner to lose his job.

On the basis of the aforequoted allegations, it is evident that petitioner can already prepare her responsive pleading or for trial. Private respondent has already

alleged that "she (petitioner) was unable to understand and accept the demands made by his profession . . . upon his time and efforts . . . " Certainly, she can respond to this. To demand for more details would indeed be asking for information on evidentiary facts — facts necessary to prove essential or ultimate facts. 13 For sure, the additional facts called for by petitioner regarding her particular acts or omissions would be evidentiary, and to obtain evidentiary matters is not the function of a motion for bill of particulars. 14

RULE 16 – Motion to Dismiss

1. Republic of the PhilippinesSUPREME COURT

ManilaTHIRD DIVISION

G.R. No. L-45107 November 11, 1991BENEDICTO 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. Angel Suntay, Jr. and Renato M. Coronado for petitioner.Tolentino, Garcia, Cruz & Reyes for respondents Ortanez.

 

FERNAN, C.J.:p

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.

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

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 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.

Thus, while the respondent court in the assailed order of dismissal dated August 27, 1976 described Civil Case No. 4102 as "precisely for the ownership of the subject matter 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

In Civil Case No. 4102 of the Court of First Instance of Bataan, entitled P. R. Roman, Inc. vs. Benedicto Ramos one of the principal issues is the possession of the fishpond subject matter of the lease supposed rents of which are supposed 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 and defendant

Benedicto Ramos, plaintiff here, anchoring his claim of possession upon his lease with the Ortanez spouses against whom, on his 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 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 court, and bringing his consignation case before the same court would actually save him time, effort and litigation expenses.

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 a prior pending action. Considering the broader scope of inquiry involved in Civil Case No. 4102 and the location of the property involved, no error was committed by the lower court in deferring to the Bataan court's jurisdiction.

WHEREFORE, the assailed decision dated August 27, 1976 of the then Court of First Instance of Manila, Branch XVII, is AFFIRMED in toto. This decision is immediately executory, with costs against petitioner.

SO ORDERED.

2. Lee Bun Ting and Ang Chia vs. Hon. Jose Aliagen, Rafael Dinglasan et. al.

Facts: In a previous cases [G. R. No. L-5996, "Rafael Dinglasan, et al. vs. Lee Bun Ting, et al.] decided by the SC with the same set of private parties, it was found that private respondents sold to herein petitioner a parcel of land located in Roxas City, Capiz through a conditional sale. Lee, the buyer, on the other hand avers that it was an absolute sale. Both trial court and CA ruled in favor of buyer Lee. The SC found that Lee is normally not allowed to purchase the property on the count of the constitutional prohibition (Section 5. Save in cases of hereditary succession, no private agricultural land shall be transferred or assigned except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain in the Philippines.- Article 13, 1935 Consitution) But since it was also found out that the buyers (private respondents) are in pari delicto for selling the property in spite of the constitutional prohibition they are proscribed from assailing the sale made between them and herein private respondents.

12 years after the above mentioned case was promulgated, the present case for the recovery of the lot was instituted with the same contention of the respondents Dinglasan that the sale should be null and void on account of the constitutional prohibition.

A motion to dismiss was filed by petitioners in this case on the ground of res judicata. An opposition thereto was filed by plaintiffs, with the averment that the decision in the prior case "cannot be pleaded in bar of the instant action because of new or additional facts or grounds of recovery and because of change of law or jurisprudence.

The Court of Appeals denied the motion to dismiss.

Issue: Whether or not the motion to dismiss should be granted

Held: Affirmative. The decision of this Court in G. R. No. L-5996, "Rafael Dinglasan, et al. vs. Lee Bun Ting, et al." constitutes a bar to Civil Case No. V-3064 before the respondent court. Said Civil case, therefore, should have been dismissed because it is a mere relitigation of the same issues previously adjudged with finality, way back in 1956, between the same parties or their privies and concerning the same subject matter. We have consistently held that the doctrine of res judicata applies where, between a pending action and one which has been finally and definitely settled, there is Identity of parties, subject matter and cause of action.

We find that in the ultimate analysis, Civil Case No. V-3064 is but an attempt to reopen the issues which were resolved in the previous case. Contrary to the contentions of private respondents, there has been no change in the facts or in the conditions of the parties. Posterior changes in the doctrine of this Court cannot

retroactively be applied to nullify a prior final ruling in the same proceeding where the prior adjudication was had, whether the case should be civil or criminal in nature. The determination of the questions of fact and of law by this Court on June 27, 1956 in case No. L-5996 has become the law of the case, and may not now be disputed or relitigated by a reopening of the same questions in a subsequent litigation between the same parties and their privies the same subject matter.

3. PHILIPPINE NATIONAL BANK,   plaintiff-appellant,   vs. HERMOGENES HIPOLITO and LEONOR JUNSAY,   defendants-

appellees.G.R. No. L-16463

FACTS: June 18, 1959 – a complaint was filed alleging that defendant Hermogenes Hipolito and Leonor Junsay obtained various sugar crop loans from plaintiff PNB through its Victorias Branch, evidenced by promissory notes.

The amount of the notes was a total of P9,692.00. Defendants only paid P3,905.61, leaving a balance of P6,786.39, which, added to accrued interest of P5,213.34, summed up to P11,999.73 as of January 17, 1957.

Despite repeated demands, defendants failed and refused to pay said amount. May 7, 1957 - defendants went to Atty. Francis I. Medel of the legal department of plaintiff's Victorias branch and offered a plan of payment of the account

For reasons unknown to plaintiff and probably due to the transfer of defendant Hipolito as supervising teacher to some other province, his proposed plan of payment did not materialize. Said offer of plan of payment was an acknowledgment of defendants' just and valid obligation. The prayer is for the court to order defendants to pay to plaintiff the said amount of P11,999.73, with accrued annual interest thereon ( rate of 5% from January 17, 1957 up to the date of payment, plus attorney's fees equivalent to 10%.)

Defendants moved for a bill of particulars – denied. Defendants moved to dismiss on the ground that plaintiff's cause of action already prescribed. attached to the motion: a joint affidavit and defendants averred that they never made any acknowledgment of indebtedness nor offered a plan of payment, but on the contrary had always maintained that plaintiff's action had prescribed.

Plaintiff’s opposition - contending that the prescriptive period had been suspended by "EO No. 32, known as the Moratorium Law," and interrupted, pursuant to Article 1973 of the old Civil Code, by plaintiff’s written extra-judicial demands as well as by defendants’ acknowledgment of the indebtedness.

Defendants reply to plaintiff's opposition - citing Bachrach Motors Co., Inc. v. Chua Tia Hian, stated that EO. No. 32, if at all, suspended the prescriptive period "only for 2yrs, 4 months and 16 days, from March 10, 1945, or only up to July 26, 1948," - that the alleged written extrajudicial demands constitute self-serving evidence; and that defendant Hipolito’s letter of February 16, 1959 cannot be considered as an acknowledgment of indebtedness.

Lower court – dismissed the complaint: ruled that the 7 promissory notes constituted 1 single obligation, that the last promissory note dated June 23, 1941, should be considered as the true date of the written contract, from which the 10-year prescriptive period and such period has been suspended for 2 years, 4 months and sixteen 16 days (by reason of EO No. 32) until said Order was declared unconstitutional.

ISSUE: Whether or not the defendant’s denial of the allegations constitute as grounds for the dismissal of the complaint

RULING: NO. The dismissal is erroneous. In a motion to dismiss defendant hypothetically admits the truth of the allegations of fact contained in the complaint.

An examination of the complaint herein does not indicate clearly that prescription has set in. On the contrary, it is belied by the allegation concerning defendant’s offer of payment made on May 7, 1957. Such offer hypothetically admitted in the motion, worked as a renewal of the obligation. An offer of payment works as a renewal of the obligation and prevents prescription from setting in.

It is true that defendants attached to the motion a joint affidavit of merit wherein they deny having made an offer of a plan of payment. The denial, being a contrary averment of fact, would be proper in the answer to the complaint but not in a motion for dismissal, for the contradictory allegations would require presentation of evidence. Denial of allegations in a complaint is not proper in a motion to dismiss.

** A denial of an allegation of a complaint, as for example the denial of an offer of payment which would prevent prescription from setting in, would be proper in the answer to the complaint but not in a motion for dismissal, for the contradictory allegations would require presentation of evidence

The same is true of the other allegations in the complaint concerning, the demands for payment sent by plaintiff upon defendants and the partial payments made by them, all or some of which may have a material bearing on the question of prescription. In other words, the ground for dismissal not being indubitable, the lower court should have deferred determination of the issue until after trial of the case on the merits.

The order appealed from is set aside and the case is remanded to the lower court for further proceedings.

4. #11.G.R. No. 109068 January 10, 1994 GAUDENCIO GUERRERO,   petitioner,  

vs.REGIONAL TRIAL COURT OF ILOCOS NORTE, BR. XVI, JUDGE LUIS B.

BELLO, JR., PRESIDING, and PEDRO G. HERNANDO,   respondents.

FACTS: 1. Pedro G. Hernando apparently overlooked this alleged defect since he did

not file any motion to dismiss nor attack the complaint on this ground in his answer.

2. @ PRE-TRIAL: Judge Luis B. Bello, Jr.: NOTED THAT: GUERRERO and HERNANDO were related as brothers-in-law then JUDGE gave petitioner five (5) days "to file his motion and amended complaint" to allege that the parties were very close relatives, their respective wives being sisters, and that the complaint to be maintained should allege that earnest efforts towards a compromise were exerted but failed and considered this deficiency a JURISDICTIONAL DEFECT.

3. MR was filed by GUERRERO: brothers by affinity are not members of the same family, he was not required to exert efforts towards a compromise – DENIED: "[f]ailure to allege that earnest efforts towards a compromise is jurisdictional such that for failure to allege same the court would be deprived of its jurisdiction to take cognizance of the case."

4. Case was dismissed without prejudice: No amended complaint filed

5. ISSUE: ON APPEAL: GUERRERO: a. whether brothers by affinity are considered members of the same

family contemplated in Art. 217, par. (4), and Art. 222 of the New Civil Code, as well as under Sec. 1, par. (j), Rule 16, of the Rules of Court requiring earnest efforts towards a compromise before a suit between them may be instituted and maintained;

b. whether the absence of an allegation in the complaint that earnest efforts towards a compromise were exerted, which efforts failed, is a ground for dismissal for lack of jurisdiction.

HELD: 1. The Constitution protects the sanctity of the family and endeavors to

strengthen it as a basic autonomous social institution. This is also embodied in Art. 149, and given flesh in Art. 151, of the Family Code, which provides:

2. Considering that Art. 151 starts with the negative word "No", the requirement is mandatory 4 that the complaint or petition, which must be verified, should allege that earnest efforts towards a compromise have been made but that the same failed, so that "[i]f it is shown that no such efforts were in fact made, the case must be dismissed."

3. BUT the instant case presents no occasion for the application of the above-quoted provisions. As early as two decades ago, we already ruled in Gayon v. Gayon 6 that the enumeration of "brothers and sisters" as members of the same family does not comprehend "sisters-in-law".

4. The requirement that the complaint or petition should allege that earnest efforts toward a compromise have been made but that the same failed is mandatory

5. The enumeration of “brothers and sisters” as members of the same family does not comprehend “sister-in-law”/ “brothers-in-law” are not listed in Art 217 of the NCC as members of the same family and since Art 150 repeats the same “members of the family” court finds no reason to alter the existing jurisprudence

6. 2nd ISSUE: The attempt to compromise as well as the inability to succeed is a condition precedent to the filing of a suit between members of the same family, absent such allegation in the complaint being assailable at any stage of the proceeding, even on appeal, for lack of cause of action.

5. CONTINENTAL CEMENT CORPORATION,   petitioner,   vs.

COURT OF APPEALS and MUNICIPALITY OF NORZAGARAY,   respondents.

FACTS:1. On February 1, 1985, the Municipality of Norzagaray filed a complaint for

recovery of taxes against the petitioner in the Regional Trial Court of Malolos, Bulacan.

2. Before the expiration of the 15-day reglementary period to answer, the petitioner filed two successive motions for extension of time to file responsive pleadings, which were both granted. The last day of the second extension was May 28, 1985.

3. On May 25, 1985, the petitioner filed a motion to dismiss the complaint on the ground of the plaintiffs lack of capacity to sue and lack of a cause of action. The motion was denied "both for lack of merit and for having been improperly filed."

4. On July 25, 1985, the plaintiff moved to declare the petitioner in default for having filed only the motion to dismiss and not a responsive pleading during the extension granted. This declaration was made on August 2, 1985, and evidence for the plaintiff was thereafter received ex parte resulting in a judgment in its favor on February 4, 1986. The judgment was affirmed by the respondent court in its decision dated April 7, 1989, which is the subject of the present petition.

ISSUE: WON the Motion to Dismiss was seasonably filed.

Ruling:There is no question that the motion to dismiss was filed seasonably, within the period of the second extension granted by the trial court. It is true that such a motion could not be considered a responsive pleading as SC have held in many cases. Nevertheless, it is also true that in Section 1 of Rule 16 of the Rules of Court, it is provided that "within the time for pleading,a motion to dismiss the action may be made" on the grounds therein enumerated, including the grounds invoked by the petitioner.Moreover, it is clearly provided in Section 4 of the same Rule that:Sec. 4. Time to plead. — If the motion to dismiss is denied or if determination thereof is deferred, the movant shall file his answer within the period prescribed by Rule 11, computed from the time he received notice of denial or deferment, unless the court provides a different period.The motion to dismiss was filed on May 25, 1985, three days before the expiration of the second extension. Notice of its denial was served on the petitioner on July 29, 1985. From that date, the petitioner had 15 days within which to file its answer, or until August 13, 1985. It was unable to do so, however, because of the default order issued by the trial court on August 2, 1985. On that date, the petitioner still had eleven days before the expiration of the 15-day reglementary period during which the petitioner was supposed to file his answer.The Court recapitulates the rules as to the filing of a Motion to dismiss by the defendant as follows:1. The trial court may in its discretion and on proper motion extend the 15-day reglementary period for the filing of responsive pleadings.2. During the original reglementary 15-day period, or any extension of such period, the defendant may file a motion to dismiss the complaint.3. If the motion to dismiss is denied, the defendant is allowed another fifteen days from notice of the denial to file the responsive pleading. The full 15-day reglementary period starts all over again.

6. Borje vs. CFI of Misamis Occidental Br. II

Facts: 1. Borje is the counsel of the water consuming public of Ozamis City, he

allegedly received a blank water bill, with no indication of the meter readings, no. of cubic meters consumed and the amount to be paid, hence he refused to pay said bill which lead to the disconnection of his services;

2. He brought an action for damages w/ preliminary injunction against MOWD in the respondent Court;

3. The Court then issued an order enjoining MOWD to disconnect the water service and subsequently to reconnect the service;

4. MOWD then filed a motion to dismiss based on 2 grounds: 1) lack of jurisdiction of respondent Court and 2) another action pending between the same parties for the same causes;

5. Respond Court dismissed the case but not based on the grounds above mentioned but because there was no malice or bad faith in the severance of the water connection of petitioner and that MOWD had already reconnected the same.

Issue: WON, respondent court gravely abused its discretion in dismissing the case based on the ground which is not alleged in the motion to dismiss of MOWD

Held: YES. 1. The dismissal of an actions on grounds not alleged in the motion to dismiss

is improper for in so doing, a court in effect dismiss an action motu propio w/out giving Borje a chance to argue ithe point w/out receiving any arguments or evidence in question.

2. Under Sec. 1 of Rule 8, it enumerates the grounds upon which an action may be dismissed and it specifically ordains that a motion to this end be filed. The only instance in which the court may dismiss upon a court’s own motion on action is, when the “plaintiff fails to appear at the time of the trial or to prosecute his action for an unreasonable length of time or to comply w/ the Rules or any order of the Court.

3. The dismissal of an action upon a motion to dismiss constitutes a denial of due process, if from a consideration of the pleading it appears that there are issues of fact which cannot be decided w/out the trial of the case on the merits.

xxx Summary or outright dismissals of actions are not proper where there are factual matters in dispute which need presentation and appreciation of evidence. … Short cuts in judicial processes are to be avoided when they impede rather than promote a judicious dispensation of justice xxx

7. DANFOSS, INC., Petitioners, vs. CONTINENTAL CEMENT CORPORATION, Respondent.

G.R. No. 143788 September 9, 2005

FACTS: 1. Mechatronics Instruments and Controls, Inc. (MINCI) is an agent of Danfoss,

Inc.’s products here in the Philippines. On September 1997, CCC ordered two unit 132 KW Danfoss Brand Frequency Converter/Inverter from MINCI to be used in the Finish Mill of its Cement Plant in Bulacan. In the terms of conditions of the original purchase order, the two unit Frequency Converter shall be delivered by Danfoss within 8 to 10 weeks from the opening of the

letter of credit. The letter of credit opened by CCC in favour of Danfoss on September 9, 1997.

2. On September 17, 1997, MINCI informed CCC that its order are already ready for shipment and MINCI requested to amend the letter of credit changing the port of origin/loading from Singapore to Denmark (Singapore is the Asian Regional Office of Danfoss, the Head Office of the company is Denmark). CCC complied and the port of origin in the letter of credit was changed.

3. On November 6, 1997, MINCI relayed to CCC that Danfoss Inc. was still checking the status of their order. CCC replied that every delay in the delivery of the order will cause loss to their company, so CCC requested for early work out and immediate shipment to avoid further loss.

4. But, on November 9, 1997, Danfoss Inc. informed MINCI through fax, that the reason for the delivery problems was that some of the supplied components for the new VLT 5000 series (this may be a part of the converter which is the subject thing in this case or a machine to create the converter) did not meet the agreed quality standard. So, Danfoss was canvassing for another supplier for the said VLT 5000 series. In the fax, there was no clear message as to when normal production will resume.

5. Upon receiving the relayed information, CCC surmised that Danfoss would not be able to deliver their order. There was also no definite commitment of the delivery from Danfoss and MINCI, so CCC informed MINCI that they intend to cancel its order. The order was cancelled on November 13, 1997.

6. Hence the complaint for damages filed by CCC with the RTC of Quezon City against Danfoss and MINCI on November 5, 1998. In reply, Danfoss filed a motion to dismiss the complaint.CCC’s contention : Due to the “impending” delay in the delivery of its order, it suffered more than P8 million and was compelled to look for another supplier.Danfoss’s contention: The case should be dismissed on the ground that it did not state a cause of action.1) The letter of credit was opened on September 9, 1997, so, since the agreed delivery period is 8 to 10 weeks from the opening of the letter of credit, the due date is until November 19, 1997.2) Although Danfoss was having a problem with its supplier prior to CCC’s cancellation of its order, CCC only surmised that Danfoss could not deliver within the due date agreed upon.3) Neither Danfoss nor CCC agreed to change the date of delivery. Only the port of origin was changed in the letter of credit. Danfoss has until November 19, 1997 to deliver the order, CCC cancelled the order on November 13, 1997.4) CCC never made an extrajudicial demand for the delivery of its order on its due date as it cancelled the order before the due date.5) Damages sought for by CCC could not have accrued yet since the order was cancelled before the delivery was actually delayed.

7. RTC ruled in favor of CCC. According to the RTC: “...the issue of whether or not the defendants incur delay in the delivery of the equipment in question within the period stipulated is a debatable question which necessitates actual trial on the merits where the parties have to adduce evidence in support of their respective stance.

8. CA: Affirmed the decision of the RTC and denied the Motion for Reconsideration of Danfoss.

ISSUE: WON there was a cause of action in the complaint filed by CCC against Danfoss

HELD: No, there was no cause of action in the complaint for damages filed by CCC.SC ruled that “In order to sustain a dismissal on the ground of lack of cause of action, the insufficiency must appear on the face of the complaint. And the test of the sufficiency of the facts alleged in the complaint to constitute a cause of action is whether or not, admitting the facts alleged, the court can render a valid judgment thereon in accordance with the prayer of the complaint. For this purpose, the motion to dismiss must hypothetically admit the truth of the facts alleged in the complaint.”

After a careful perusal of the allegations in respondent’s complaint for damages against petitioner, we rule that the same failed to state a cause of action. When respondent sued petitioner for damages, petitioner had not violated any right of respondent from which a cause of action had arisen. Respondent only surmised that petitioner would not be able to deliver the two units frequency converter/inverter on the date agreed upon by them. Based on this apprehension, it cancelled its order six days prior to the agreed date of delivery. How could respondent hold petitioner liable for damages (1) when petitioner had not yet breached its obligation to deliver the goods and (2) after respondent made it impossible for petitioner to deliver them by cancelling its order even before the agreed delivery date?

The trial court erred in ruling that the issue of whether or not the defendants incurred delay in the delivery of the equipment within the period stipulated was a debatable question. It said that trial on the merits was necessary and the parties had to adduce evidence in support of their respective positions.8 But what was there to argue about when, based on the allegations of the complaint, petitioner was not yet due to deliver the two units frequency converter/inverter when respondent cancelled its order? It still had six days within which to comply with its obligation. The court a quo should not have denied petitioner’s motion to dismiss the complaint (for its failure to state a cause of action) when, on its face, it was clear that petitioner had not yet reneged on its obligation to deliver the frequency converter/inverter on the

date mutually agreed upon by the parties. Moreover, the obligation itself was negated by no less than respondent’s own act of cancelling its order even before the prestation became due and demandable. Where therefore was the breach? Where was the damage caused by petitioner? There was none.Consequently, it was wrong for the CA to affirm the order of the trial court denying petitioner’s motion to dismiss the complaint for its failure to state a cause of action.

8. Lu vs. Nabua (eto lang talaga facts ng case, please read rule 16 sec 2 and 3)

Facts: The petition stemmed from an amended complaint filed by the "PR" against

"P", for accounting w/ TRO and Injunction; "P" filed an Omnibus MD the Amended Complaint based on the ff. grounds:

o Plaintiff's claims are barred by a prior judgement or by statute of limitations (R16 S1f)

o Plaintiffs have no legal capacity to sue and/or do not have a cause of action(R16 S1g)

o Fraud and Equityo Docket Fees are not paid

"PR" filed their opposition of the Omnibus MD Amended Complaint alleging the ff.:

o Plaintiffs not barred by prior judgment nor by statute of limitationso Plaintiffs have the legal capacity to sue and have a valid cause of

actiono DF have been paid

After the filing of "P" reply to the Opposition to MD Amended Complaint, the same was submitted for resolution;

In resolving the OMD, lower court denied the OMD thenafter "P" filed an MR regarding the dismissal of the OMD however it was also denied. Hence appeal.Issues:1. WoN the CA erred in dismissing the petition for certiorari in holding that the trial court did not commit grave abuse of discretion in denying "P" MD2. WoN the trial court’s denial of petitioner’s motion to dismiss on the ground that “[T]here are justiciable questions raised in the pleadings of the herein parties which are proper subject of a full blown trial” contravenes Sec. 3, Rule 16 of the Rules and constitutes grave abuse of discretion on the part of the trial court. Held:1. An order denying a motion to dismiss is an interlocutory order which neither terminates nor finally disposes of a case,as it leaves something to be done by the court before the case is finally decided on the merits. As such,

the general rule is that the denial of a motion to dismiss cannot be questioned in a special civil action for certiorari which is a remedy designed to correct errors of jurisdiction and not errors of judgment. Neither can a denial of a motion to dismiss be the subject of an appeal unless and until a final judgment or order is rendered. In order to justify the grant of the extraordinary remedy of certiorari, the denial of the motion to dismiss must have been tainted with grave abuse of discretion amounting to lack or excess of jurisdiction.2. Under R16 S3, provides that Under this provision, there are three (3) courses of action which the trial court may take in resolving a motion to dismiss, i.e., to grant, to deny, or to allow amendment of the pleading. Deferment of the resolution of a motion to dismiss if the ground relied upon is not indubitable is now disallowed in view of the provision requiring presentation of all available arguments and evidence. Thus, there is no longer any need to defer action until the trial as the evidence presented, and such additional evidence as the trial court may require, would already enable the trial court to rule upon the dubitability of the ground alleged.Further, it is now specifically required that the resolution on the motion shall clearly and distinctly state the reasons therefor. This proscribes the common practice of perfunctorily dismissing the motion for “lack of merit.” Such cavalier dispositions can often pose difficulty and misunderstanding on the part of the aggrieved party in taking recourse therefrom and likewise on the higher court called upon to resolve the same, usually on certiorari.The questioned order of the trial court denying the motion to dismiss with a mere statement that there are justiciable questions which require a full blown trial falls short of the requirement of Rule 16 set forth above. Owing to the terseness of its expressed justification, the challenged order ironically suffers from undefined breadth which is a hallmark of imprecision. With its unspecific and amorphous thrust, the issuance is inappropriate to the grounds detailed in the motion to dismiss.While the requirement to state clearly and distinctly the reasons for the trial court’s resolutory order under Sec. 3,Rule 16 of the Rules does call for a liberal interpretation, especially since jurisprudence dictates that it is decisions on cases submitted for decision that are subject to the stringent requirement of specificity of rulings under Sec. 1, Rule 3624 of the Rules, the trial court’s order in this case leaves too much to the imagination.

Rule 17 – Dismissal of Actions

1. GO v CRUZ

FACTS:

On October 26, 1981, California Manufacturing Co., Inc. brought an action in the CFI of Manila against Dante Go, accusing him of unfair competition. California alleged that Dante Go is doing business under the name and style of "Sugarland International Products," and engaged like California in the manufacture of spaghetti, macaroni, and other pasta was selling his products in the open market under the brand name, "Great Italian," in packages which were in colorable and deceitful limitation of California's containers bearing its own brand, "Royal." Its complaint contained an application for preliminary injunction commanding Dante Go to immediately cease and desist from the further manufacture, sale and distribution of said products, and to retrieve those already being offered for sale.

About two weeks later, however, or on November 12, 1981, California filed a notice of dismissal.

Four days afterwards, or on November 16, 1981, California received by registered mail a copy of Dante Go's answer with counterclaim dated November 6, 1981, which had been filed with the Court on November 9, 1981.

On November 19, 1981 a fire broke out at the Manila City Hall destroying among others the sala of Judge Tengco and the records of cases therein kept, including that filed by California against Dante Go. 

On December 1, 1981, California filed another complaint asserting the same cause of action against Dante Go, this time with the CFI at Caloocan City. This second suit was docketed as Civil Case No. C-9702 and was assigned to the branch presided over by Judge Fernando A. Cruz.

On December 3, 1981, Judge Cruz issued an ex parte restraining order against Go.

On the day following the rendition of the restraining order, Dante Go filed the present petition for certiorari, etc. with this Court praying for its nullification and perpetual inhibition. On December 11, 1981, this Court, in turn issued a writ of preliminary injunction restraining California, Judge Cruz and the City Sheriff from enforcing or implementing the restraining order of December 3, 1981, and from continuing with the hearing on the application for preliminary injunction in said Civil Case No. C-9702. The scope of the injunction was subsequently enlarged by this Court's Resolution of April 14,1982 to include the City Fiscal of Manila, who was thereby restrained from proceeding with the case of unfair competition filed in his office by California against Dante Go.

ISSUE: WON Sec. 1, Rule 17 of the Rules of Court applies in the present case.

HELD: No.What marks the loss by a plaintiff of the right to cause dismissal of the action by mere notice is not the filing of the defendant's answer with the Court (either personally or by mail) but the service on the plaintiff of said answer or of a motion for summary judgment. This is the plain and explicit message of the Rules. "The filing of pleadings, appearances, motions, notices, orders and other papers with the court, "according to Section 1, Rule 13 of the Rules of Court, means the delivery thereof to the clerk of the court either personally or by registered mail. Service, on the other hand, signifies delivery of the pleading or other paper to the parties affected thereby through their counsel of record, unless delivery to the party himself is ordered by the court, by any of the modes set forth in the Rules, i.e., by personal service, service by mail, or substituted service.

Here, California filed its notice of dismissal of its action in the Manila Court after the filing of Dante Go's answer butbefore service thereof. Thus having acted well within the letter and contemplation of the afore-quoted Section 1 of Rule 17 of the Rules of Court, its notice ipso facto brought about the dismissal of the action then pending in the Manila Court, without need of any order or other action by the Presiding Judge. The dismissal was effected without regard to whatever reasons or motives California might have had for bringing it about, and was, as the same Section 1, Rule 17 points out, "without prejudice," the contrary not being otherwise "stated in the notice" and it being the first time the action was being so dismissed.

There was therefore no legal obstacle to the institution of the second action in the Caloocan Court of First Instance based on the same claim. The filing of the complaint invested it with jurisdiction of the subject matter or nature of the action. In truth, and contrary to what petitioner Dante Go obviously believes, even if the first action were still pending in the Manila Court, this circumstance would not affect the jurisdiction of the Caloocan Court over the second suit. The pendency of the first action would merely give the defendant the right to move to dismiss the second action on the ground of auter action pendant or litis pendentia. 

Dante Go vs. Hon. Cruz, City Sheriff and California Manufacturing (1989)

[Facts]

- California Manufacturing filed a case against Dante Go for unfair competition alleging that the latter’s pasta products (Great Italian) such as spaghetti and macaroni are packed with confusing similarity and colourable imitation with the former’s Royal Pasta products.

- 2 weeks later, California filed a Notice of Dismissal without prejudice

- 4 days after it received Go’s answer with counterclaim

- Fire broke out at the Manila City Hall and burned the records therein including the case filed by California

- California filed another complaint based on the same cause of action against Go in the CFI Caloocan.

- Caloocan judge issued a restraining order directing Go to cease and desist from manufacturing and selling his products.

- Go claims that the case in Manila is still pending and that the dismissal sought by California is no longer a matter of right. He further accused California of forum shopping at Caloocan judge’s sala.

[issue] Whether or not the dismissal of California is in accordance with the Rules of Court thus allowing it to file a subsequent case

[ruling] Yes, it is in accord with RC. Section 1 Rule 17 mandates that notice of dismissal must be filed any time before service of answer.

-California filed its notice of dismissal in CFI manila after Go’s filing of answer but before service thereof. Thus, its notice ipso facto brought about the dismissal of the action pending in Manila court, without need of any order or action by the presiding judge therein.

-No legal obstacle to the institution of the second action in the Caloocan CFI based on the same claim.

2. G.R. No. L-35989 October 28, 1977

JALOVER vs. YTORIAGA

FACTS: This involves a land dispute filed by Ytoriaga and Lopez against Hedriana and Jalover in the CFI of Iloilo. They claim that they the owners of the lot, covered by TCT by virtue of the effects of the current of the river based on the principle of continuous possession and alluvion. They alleged that Jalover , without their consent had the portion of the land surveyed and even placed concrete monuments thereof and even took possession of the land. Jalover , alleged, inter alia, that he is the owner of the land as sole heir of his mother, who owned the land pursuant to Article 461 of the Civil Code of the Philippines. Ytoriaga and Lopez offered documentary evidence and upon admission thereof, rested their case. Jalover prayed the court to dismiss the complaint with costs against Ytoriaga and Lopez Issues having been joined, the case was set for trial. Trial was postponed many times stretching to a period of more than 6 years, until January 26, 1970, when the case was called for trial, and then Presiding Judge Ramon Blanco dismissed the case, for failure of private respondents to appear in court, since the Plaintiff did not take the necessary steps to engage the service of another lawyer in lieu of Atty. Atol, who since several years ago has been appointed Chief of the Secret Service of the Iloilo City Police Department. Two years later, private respondents' lawyer, Atty. Amado B. Atol, filed a motion for reconsideration alleging that the said respondents did not fail to prosecute

because, during the times that the case was set for hearing, at least one of said respondents was always present, and the record would show that the transfers of hearing were all made at the instance of petitioner or his counsel; and, moreover, private respondents had already finished presenting their evidence. respondent Judge Venicio Escolin, who succeeded Judge Blanco in Branch V, issued an order denying the motion for reconsideration on the ground that the order of dismissal had become final long ago and was beyond the court's power to amend or change. Private respondents then filed a Petition for Relief from Judgment dated July 10, 1972, claiming that the order of dismissal dated January 26, 1970 was void because of lack of due process and for having been obtained thru fraud, for the petitioner had misrepresented to the court the status of the case by making Judge Blanco - who was not the Presiding Judge when private respondents presented their evidence and rested their case in 1963 - believe that trial had not even begun. Petitioner opposed the petition for relief contending that private respondents were served a copy of the order of dismissal on February 5, 1970, and, therefore, pursuant to Section 3, Rule 38 of the Revised Rules of Court, the petition for relief should have been filed within 60 days from February 5, 1970, and within 6 months from January 26, 1970, when the order was issued; hence, the filing of the petition was beyond the reglementary period.The petition for relief was given due course,setting aside the orders dated January 26, 1970 and June 23, 1972, and setting the continuation of the trial for September 15, 1972. Hence, the present recourse by petitioner.

ISSUE: WON the prior case was validly dismissed for failure to prosecute

HELD: NO

It will be noted that, as found by respondent Judge, private respondents, as plaintiffs, adduced their evidence and rested their case on September 4, 1963, or more than six years before the dismissal of the case on January 26, 1970. It was, therefore, the turn of petitioner, as defendant, to present his evidence. In the premises, private respondents court not possibly have failed to prosecute they were already past the stage where they could still be charged with such failure. As correctly held by respondent Judge, private respondents' absence at the hearing scheduled on January 6, 1970 "can only be construed as a waiver on their part to cross-examine the witnesses that defendants might present at the continuation of trial and to object to the admissibility of the latter's evidence." The right to cross-examine petitioner's witnesses and/or object to his evidence is a right that belongs to private respondents which they can certainly waive. Such waiver could be nothing more than the "intentional relinquishment of a known right," and. as such, should not have been taken against private respondents.

To dismiss the case after private respondents had submitted their evidence and rested their case, would not only be to hold said respondents accountable for waiving a right, but also to deny them one of the cardinal primary rights of a litigant, which is, corollary to the right to adduce evidence, the right to have the said evidence considered by the court. The dismissal of the case for failure to prosecute, when in

truth private respondents had already presented their evidence and rested their case, and, therefore, had duly ,prosecuted their case, would in effect mean a total disregard by the court of evidence presented by a party in the regular course of trial and now forming part of the record. The ends of justice would be better served if, in its deliberative function. the court would consider the said evidence together with the evidence to be adduced by petitioner.However,relief from judgment under Rule 38 of the Revised Rules of Court is not the appropriate remedy. A petition for relief is available only if the judgment or order complained of has already become final and executory; but here, as earlier noted, the order of January 26, 1970 never attained finality for the reason that notice thereof was not served upon private respondents' counsel of record. The petition for relief may nevertheless be considered as a second motion for reconsideration or a motion for new trial based on fraud and lack of procedural due process.

Fermin Jalover vs Porferio Ytoriaga, Consolacion Lopez (1977)

[facts]

- This involves a land dispute filed by Ytoriaga and Lopez vs. Jalover in CFI Iloilo.

- Ytoriaga and Lopez claims that a land which was once under water automatically belongs to them based on the principle of continuous possession and alluvion. They alleged that Jalover, without their consent, had that portion of land surveyed and even placed concrete monuments thereon and took possession thereof.

- Jalover, in his answer, alleged that his mother and Hedriana are co-owners of said land; that he, as heir, is entitled to that portion.

- Ytoriaga and Lopez offered documentary evidence and upon admission thereof, rested their case.

- Continuation of trial was ordered transferred until further assignment, thus, causing the postponement of said case for a period of more than 6 years.

- When the case was re-called for trial, Ytoriaga and Lopez failed to appear. Judge Blanco dismissed the case for their failure to prosecute.

- 2 years after, Ytoriaga’s counsel filed an MR but denied. Counsel filed a petition for relief of judgement. It was given due course.

[issue] Whether or not the prior case is validly dismissed for failure to prosecute.

[ruling] No. Private respondents (Y and L) could not have possibly failed to prosecute as they were already past the stage of presenting their evidence. Their absence during the time the case was re-called for trial was a mere waiver of their right to cross-examine the witnesses.

The dismissal of the case for failure to prosecute when in truth they have already presented their evidence and rested their case would, in effect, mean a total disregard of the court of the evidence presented by them in the regular course of trial.

Further, said dismissal never attained finality as the notice thereof was not served upon their counsel of record.

3.

Ligaya, Jaime, Silvina, Fausta, Pablo all surnamed Mina vs. Antonia Pacson, Crispino Medina and Cresencia Mina (1963)

[facts]

- Case 1: The Minas are claiming to be the illegitimate children of Joaquin Mina while married to Pacson. They are claiming that the DOS allegedly signed by Joaquin when he was ill was fraudulently obtained. They pray for the annulment of the DOS and their recognition as illegitimate children.

- Court in Case 1 ordered that Pacson be impleaded. The Minas failed to comply with said order, thus, it was dismissed.

- Case 2: The Minas filed another case, this time impleading Pacson but with the same cause of action and including Medina and Cresencia.

- Defendants filed a MTD on the ground of res judicata.

[issue] Whether or not CC 3015 (case 1) effectively bars the present case

[ruling] Partially. Failure to comply with a court order has the effect of adjudication upon the merits (Sec 3 Rule 17). Thus, failure to comply with the court order in CC 3015 justifies the dismissal on the issue of annulment of DOS.

However, present case is not deemed dismissed as to the issue of filiation and Pacson, as she is not impleaded in the prior case.

4. G.R. No. L-18707 February 28, 1967

CASEÑAS vs. ROSALES

FACTS: Arañas and Caseñas filed with the CFI of Agusan, a complaint for specific performance and enforcement of their alleged right under a certain deed of sale, and

damages against the spousesRosales. They alleged that sometime in 1939, Agustin O. Caseñas acquired from Rodolfo Arañas under a deed of assignment, the latter's rights and interest over a parcel of land , that Rodolfo Arañas in turn, acquired the said property from the spouses Jose A. Rosales and Concepcion Sanchez under a deed of sale ,under the terms of which, however, the actual transfer of the aforesaid land unto the vendee would be made only on or before February 18, 1941; and that despite the above documented transactions, and despite the arrival of the stipulated period for the execution of the final deed of transfer, the vendors spouses refused to fulfill their obligation to effect such transfer of the said lot to the vendee, Rodolfo Arañas or his assignee, the herein appellant, Agustin O. Caseñas. After the defendants-spouses had filed their answer to the above complaint, but before trial, the counsel for the plaintiffs gave notice to the trial court that plaintiff Rodolfo Arañas and defendant Jose A. Rosales had both died. In view of the said manifestation, the lower court,directed, the surviving plaintiff, Agustin O. Caseñas, to amend the complaint to effect the necessary substitution of parties thereon. The said surviving plaintiff, however, failed altogether to comply with the aforementioned order. LC dismissed the case for failure on the part of the counsel for the plaintiffs to comply with the order of this Court which shows abandonment and lack of interest on the part of the plaintiffs. Casenas, filed with the same CFI of Agusan, another complaint against the widow and heirs of the late Jose A. Rosales "to quiet, and for reconveyance of, title to real property, with damages. This suit referred itself to the very same property litigated under Civil Case No. 261 and asserted exactly the same .The defendants filed a motion to dismiss on several grounds, namely: res judicata, prescription, lack of cause of action, failure to include indispensable parties, and that the contract subject of the complaint was void ab initio. After the plaintiff had filed his opposition to the above motion, the lcissued the order under appeal dismissing the complaint. Of the above grounds, though, the lower court relied alone on the defendants' plea of res judicata, lack of cause of action and prescription.

ISSUE: WON the dismissal of the lower court was proper.

HELD: No, the SC remanded the case to the court of origin.

When certain of the parties to Civil Case No. 261 died and due notice thereof was given to the trial court, it devolved on the said court to order, not the amendment of the complaint, but the appearance of the legal representatives of the deceased in accordance with the procedure and manner outlined in Rule 3, Section 17 of the Rules of Court. In the case of Barrameda vs. Barbara, 90 Phil. 718, the SC held that an order to amend the complaint, before the proper substitution of parties as directed by the aforequoted rule has been effected, is void and imposes upon the plaintiff no duty to comply therewith to the end that an order dismissing the said complaint, for such non-compliance, would similarly be void. In a subsequent case, Ferriera et al. vs. Gonzalez, et al., G.R. No. L-11567, July 17, 1958, this court affirmed a similar conclusion on the determination that the continuance of a proceedings during the

pendency of which a party thereto dies, without such party having been validly substituted in accordance with the rules, amounts to a "lack of jurisdiction."

The facts of this case fit four squares into the Barrameda case abovecited, save for the minor variance that in the former two of the litigants died while only one predeceased the case in Barrameda. Here, as in Barrameda, during the pendency of civil case, notice was given to the trial court of the deaths of one of the plaintiffs and one of the defendants in it. Instead of ordering the substitution of the deceased's legal representatives in accordance with Rule 3, section 17 of the Rules of Court, the trial court directed the surviving plaintiff to amend the complaint and when the latter failed to comply therewith, the said court dismissed the complaint for such non-compliance. We must hold, therefore, as We did in Barrameda that inasmuch as there was no obligation on the part of the plaintiff-appellant herein to amend his complaint in Civil Case No. 261, any such imposition being void, his failure to comply with such an order did not justify the dismissal of his complaint. Grounded as it was upon a void order, the dismissal was itself void.Consequently, as the dismissal of Civil Case No. 261 was void, it clearly may not be asserted to bar the subsequent prosecution of the same or identical claim.

A cause of action is an act or omission of one party in violation of the legal right or rights of the other (Ma-ao Sugar Central vs. Barrios, 79 Phil. 666) and both these elements were clearly alleged in the aforesaid complaint.

The resolution of the issue of prescription may be deferred until after the case is tried on the merits where the defense pleaded against said issue is the existence of a trust over the property in dispute.

Agustin Casenas vs. Concepcion Sanchez de Rosales, Romeo Rosales, et. Al. (1967)

[facts]

- Case 1 prays for the execution of DOS in favour of Casenas: filed by Rodolfo Aranas(assignor) and Casenas(assignee) vs. Jose Rosales and Sanchez.

- Rosales and Sanchez filed an answer before trial. Counsel for Aranas and Casenas manifested the death of Jose Rosales and Aranas. The court ordered Casenas to amend the complaint. Casenas failed to comply, thus, it was dismissed.

- Case 2 (present case) prays for quieting and reconveyance of title in favour of Casenas. Sanchez claims res judicata.

[issue] Whether or not dismissal in the prior case effectively bars the present case

[ruling] No. The order to amend the complaint is not in accordance with the procedure of the RC. The court should have ordered the counsel to make a substitution of the deceased by the legal representatives of the deceased. Casenas’ failure to comply with the order of the court did not validly justify the dismissal of the said case.

RULE 18: PRE-TRIAL

Filoil Marketing Corporation vs Dy Pac & Co. (1988)FACTS:

Filoil commenced an action for collection of sum of money with interest against Dy Pac on the ground that the latter fails to pay, notwithstanding repeated demands, the amount due to it for petroleum products bought on credit.

At the hearing set, neither Dy Pac nor its counsel appeared. Filoil was allowed by the City Court of Manila to proceed ex parte. The said court rendered a decision on the same date ordering Dy Pac to pay Filoil.

Dy Pac appealed to CFI Manila which immediately set the case for pre-trial. It ruled that:“[…]plaintiff and defendant, who are hereby ordered to prepare a stipulation of facts based on their exhibits already marked and submit the same to the court… the parties are warned that if they cannot submit the stipulation of facts, the Court will dismiss the appeal.”

CFI Manila dismissed the case for failure of the parties to submit the required stipulation of facts and ordered the immediate return of the records to the City Court for execution.

ISSUE: Whether or not the case can be dismissed on the ground that the parties failed to submit a stipulation of facts.

RULE: No. There is no law which compulsorily requires litigants to stipulate at pre-trial on the facts and issues that may possibly crop up in a particular case, upon pain dismissal of such case. The process of securing admissions whether of facts or evidence is essentially voluntary, since stipulations of facts, like contracts, bind the parties thereto who are not allowed to controvert statements made therein. Courts cannot compel the parties to enter into an agreement upon the facts.

Where the parties are unable to arrive at a stipulation of facts and do not reach an amicable settlement of their controversy, the court must close the proceedings and go forward the trial of the case. The CFI Manila committed serious error in dismissing Dy Pac’s appeal from the City Court’s decision solely on the ground that the parties failed to comply with the order.

Rodolfo Paredes, Tito Alago, Agripino Baybay vs. Ernesto Verano and CosmeHinunangan (2006)FACTS:

In Civil Case 2767, a compromise was entered into regarding the complaint for the establishment of a right of way.Hinunangan granted a 2m-wide right of way in favour of Paredes, Alago and Baybay in consideration of P6,000.00.

A complaint for specific performance with damages was filed by Hinunangan on the ground that Petitioners had blocked the passage way in violation of the compromise agreement.

Petitioners denied the allegation contending that respondents were not actual residents of the barangay and that the lot covering the passage of right of way was sold by Hinunangan to Paredes. Petitioners filed a MTD on the ground of lack of cause of action. The trial court denied the MTD.

Pre-trial was set on April but was reset on June. However, it did not push through either because none of the parties appeared. On Nov, the RTC was informed of a proposed settlement. The case was reset to January 2004. On January, private respondents and their counsel were present. Petitioners were also present but not their counsel.

RTC allowed respondents to present evidence ex parte for failure of the defendant’s counsel to appear.

ISSUE: Whether or not the absence of counsel for petitioners at the pre-trial, with all petitioners themselves present, is a ground to declare them in default

RULING: No. Absence of counsel at pre-trial does not ipso facto authorise the judge to declare them in default. Sec. 4, Rule 18 imposes duty on litigating parties and their respective counsel to appear at pre-trial. Sec. 5

penalizes the failure to appear of either plaintiff or defendant but not of their counsel.

A judgment of default against one who failed to attend at pre-trial or even to file an answer implies a waiver only of their right to be heard and to present evidence to support their allegation but not all their other rights.

Paredes vs. VeranoFacts:

1. The legal battle between the parties began with a complaint for the establishment of a right of way filed by the petitioners against respondents. The complaint culminated in a judgment by compromise.

2. In the Compromise Agreement, respondent Cosme Hinunangan granted a 2 meter-wide right of way in favor of petitioners in consideration of the amount of Php 6,000.00 which petitioners agreed to pay.

3. Alleging that petitioners had blocked the passage way in violation of the Compromise Agreement, respondents filed a complaint for specific performance with damages against petitioners.

4. In their answer, petitioners denied having violated the Compromise Agreement, and alleged that like them, respondents were not actual residents of Barangay Tagnipa where the “road right of way” was established and that respondent Cosme had already sold his only remaining lot in the vicinity to petitioner Paredes.

5. Petitioners filed a motion to dismiss on the ground of lack of action. TC-DENIED.

6. Pre-trial was initially set for 24 April 2003, but this was reset to 3 June 2003. But the pre-trial set on 3 June 2003 did not push through either because none of the parties appeared. So, pre-trial was reset to 11 November 2003. However, petitioner Baybay was present in court along with other defendants was called. RTC was informed then of a proposed settlement between the parties, although Baybay qualified his reaction by telling the court that he would first have to inform his lawyer of the said propodal.

7. RTC reset the pre-trial for 23 January 2004.8. Before the new pre-trial date, counsel for petitioners filed a

Manifestation of Willingness to Settle With Request for Cancellation dated 5 January 2004.

9. The hearing did push through on 23 January 2004. The private respondents and their counsel were present. So were petitioners Baybay and Paredes, and co-defendant Alago, but not their counsel.

10. RTC allowed respondents to present their evidence ex parte, “for failure of the defendants’ counsel to appear before the RTC.

11. Motion for recon – DENIED.12. Petition for certiorari – CA – dismissed for failure to attach duplicate

orig copies of annexes to petition as well as other pleadings relevant and pertinent to the petition.

13. Motion for recon with motion to admit additional exhibits – DENIED. CA ruled that even with the submission by petitioners of the required pleadings and documents, the instant petition must nevertheless failed. It conceded that under Sec 5 Rule 18 of the 1997 Rules of Civil Procedure, it is the failure of the defendant, and not defendant’s counsel, to appear at the pre-trial that would serve cause to allow plaintiff to present evidence ex parte.

Issue: Whether the absence of the counsel for defendants at the pre-trial, with all defendants themselves present, is a ground to declare defendants in default and to authorize plaintiffs to present evidence ex parte.Held: No.Section 4. Appearance of parties. — It shall be the duty of the parties and their counsel to appear at the pre-trial. The non-appearance of a party may be excused only if a valid cause is shown therefor or if a representative shall appear in his behalf fully authorized in writing to enter into an amicable settlement, to submit to alternative modes of dispute resolution, and to enter into stipulations or admissions of facts and of documents. Section 5. Effect of failure to appear. — The failure of the plaintiff to appear when so required pursuant to the next preceding section shall be cause for dismissal of the action. The dismissal shall be with prejudice, unless other-wise ordered by the court. A similar failure on the part of the defendant shall be cause to allow the plaintiff to present his evidence ex parte and the court to render judgment on the basis thereof.

Section 4 imposes the duty on litigating parties and their respective counsel during pre-trial. The provision also provides for the instances where the non-appearance of a party may be excused. Nothing, however, in Sec 4 provides for a sanction should the parties or their respective counsel be absent during pre-trial. The penalty is provided for in Sec 5 which penalizes the failure to appear of either the plaintiff or the defendant, and not their respective counsel.

The absence of counsel for defendants at pretrial does not ipso facto authorize the judge to declare the defendant as in default and order the

presentation of evidence ex parte. Nothing in the rules of court sanctions the presentation of evidence ex parte upon instances when counsel for defendant is absent during pre-trial. The Rules do not countenance stringent construction at the expense of justice and equity.

Erlinda Guanzon vs Andrew Arradaza, Francisca Maidin, ErlindaLebita (2006)

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

Summons were served to Guanzon through substituted service via a certain Susan Ador. Guanzon failed to file an answer and was declared in default.

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

MeTCadjuged in favour of Arradaza.Guanzon appealed to the RTC Manila. RTC affirmed the MeTC decision. Appeal to the CA was also denied.

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

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

The service of summons upon petitioner first attempted by personal service, and subsequently by substituted service more than meets the requirements set by the Rules of Court.