Barraza v Campos

Facts:

The petition at bar evolved from a dispute

between brother and sister over the use of
the business name or style "GATCHALIAN
THE HOUSE OF NATIVE LECHON
Alleging
grave
abuse
of
discretion
amounting to lack of jurisdiction on the part
of respondent Presiding Judge, spousespetitioners, through the remedy of certiorari
under Rule 65, Revised Rules of Court,
prayed for the annulment of the latter's
judgment by default
Private respondent filed a Complaint for
damages based on defendants' (petitioners
herein) use of plaintiff's (now private
respondent) trade name and style of
"Gatchalian-The House of Native Lechon and
Restaurant"
Petitioners as defendants therein filed an
"Urgent Ex- Parte Motion" for extension of
time of 15 days within which to file an
Answer which the Court granted
Instead of filing the Answer within the
extended period of fifteen (15) days,
defendants filed through their counsel, Atty,
Esmeraldo M. Gatchalian, a "Motion to
Dismiss Complaint Together With Prayer for
Preliminary Injunction
o
That the complaint states no cause
of action
o
That venue is improperly laid
o
That there is another action
pending between the same parties
for the same cause of action
Private respondent filed an "Ex-Parte Motion
to Declare Defendants in Default" on
o
that the defendants failed to file an
answer within the reglementary
period
Court finding the reasons stated in the "ExParte Motion to Declare Defendants in
Default" filed by plaintiff, through counsel to
be well-taken, granted said motion and
allowed the plaintiff to present evidence
exparte
Respondent judge rendered his decision in
favor of the plaintiff
Defendants through counsel moved for the
reconsideration of the court's order
o
defendants were denied of their
rights of procedural due process
o
defendants were also denied of
their day in court
Court denied defendants' motion for
reconsideration
Upon an "Ex-Parte Motion for Issuance of
Writ of Execution", the Court in its Order

granted the motion and caused the issuance

of a writ of execution
Defendants through a new counsel, Atty. M.
Castillo, filed an "Urgent Omnibus Motion"
o
Court denied defendants' Omnibus
Motion
Hence this petition

Issue: W/N instead of filing an answer, the act of

filing a motion to dismiss the compliant was proper
Held:
This is clearly allowed under Section 1, Rule
16, Rules of Court
A motion to dismiss is the usual, proper and ordinary
method of testing the legal sufficiency of a
complaint. The issue raised by a motion to dismiss is
similar to that formerly raised by a demurrer under
the Code of Civil Procedure
A motion to dismiss under any of the grounds
enumerated in Sec. 1, Rule 8 (now Sec. 1, Rule 16) of
the Rules of Court, must be filed within the time for
pleading, that is, within the time to answer
Private respondents' argument that although a
motion to dismiss interrupts the running of the period
within which to file an answer, this refers to the
original period of fifteen (15) days within which to file
the responsive pleading and not to the extension of
time within which to file the answer, is without merit.
There is nothing in the Rules which provide, directly
or indirectly, that the interruption of the running of
the period within which to file an answer when a
motion to dismiss the complaint is filed and pending
before the court, refers only to the original period of
fifteen (15) days and not to the extension of time to
file the answer as granted by the court. It may be
true that under Section 4 of Rule 16, if the motion to
dismiss is denied or if the termination thereof is
deferred, themovant shall file his answer within the
time prescribed by Rule 11, computed from the time
he received notice of the denial or deferment, unless
the court provides a different period
This Section 1 of Rule 11 in relation to Section 4 of
Rule 16 allows the defendant to file his answer not
only within the original fifteen (15) days period but
also within "a different period (as) fixed by the court.
"
Without resolving petitioners' Motion to Dismiss the
Complaint, respondent Judge declared defendant in
default in his Order of December 1, 1978. This is
clearly in contravention of the Rules for under
Section 3, Rule 16, the court after hearing may deny
or grant the motion or allow amendment of pleading,

or may defer the hearing and determination of the

motion until the trial if the ground alleged therein
does not appear to be indubitable. And it is only from
the time that the movant receives notice of the
denial or deferment of the motion to dismiss that the
period within which he shall file his answer is
computed, which period is prescribed by Rule 11,
unless the court provides a different period
Simeon Mandae, plaintiff
Eustaquio
Gumarad
and
defendants and appellees

and appellant, vs.

Regino
Lagundino,

"It appearing that the motion to dismiss was

filed before the expiration of the period for
filing defendants' answer as extended by
the court, there was no legal reason for
declaring defendants in default. "
Epang vs. Ortin de Layco
"The petitioner having filed a motion to dismiss, he
was entitled to have that motion resolved before
being required to answer, since a motion to dismiss
interrupts the time to plead. It follows, therefore, that
the petitioner was incorrectly declared in default, and
the holding of the trial of the case on the merits in
his absence, without notice to him of the day of the
hearing, was a denial of due process. Consequently,
the decision of the Court of Industrial Relations was
invalid and must be set aside."
BA finance v hon. Pineda cfi- rizal judge and
Antonio
sy
respondents
FACTS:
CFINUEVA
ECIJA
(1st
case)
Private respondent Antonio Sy was adjudged liable in
favor of the plaintiffs in Civil Case for damages
resulting from a vehicular accident involving a cargo
truck
supposedly
owned
by
him.
CFI-RIZAL
(2nd
case)
magulo
na
facts...
-SY filed civil case which was assigned to the sala
presided over by the respondent Judge (di sinabi sa
case kong anung cv case )Claiming that the adverse
decision in 1st case was due to the mishandling of
the same by the counsel who represented him
therein
-defendants 2nd case were petitioner BA Finance
Corporation whom private respondent claims to be
the real owner of the cargo truck involved in the
accident; the Metro-Taisho Insurance Corporation,
which issued the insurance policy covering the same;
Atty. Ireneo Calderon, the counsel who represented
him in 1st case; and Robert Chua, the driver of the
other vehicle that figured in the accident
-Petitioner BA Finance Corporation was served
summons , Eleven days later, petitioner, through
counsel, filed a motion for extension of time to file
answer and/or motion to dismiss -the respondent

Judge gave the petitioner a period of 15 days,

counted from January 2, 1982 and to expire on
January 18, 1982 (sic), within which to file its answer
or
motion
to
dismiss
the
complaint.
-On January 13, 1982, petitioner filed a motion to
dismiss on the ground that the complaint states no
cause of action- DENIED, for being "devoid of merit."
-Petitioner filed MR of the order dated March 1, 1982.
- respondent filed motion to strike out the petitioner's
motion for reconsideration on the alleged ground
that the motion for reconsideration was filed out of
time. It was argued by counsel for the private
respondent that when the petitioner filed its motion
to dismiss on January 13, 1982, it had already used
11 days out of the 15 days' extension granted to it by
the Court in the order of January 4, 1982; that having
received the order denying its motion to dismiss on
March 8, 1982, the petitioner had only the remainder
of 4 days or up to March 12, 1982 within which to file
its answer to the complaint; consequently, the filing
of the motion for reconsideration on March 17, 1982
was already beyond the reglementary period for
filing the answer- granted and petitioner was
declared
in
default.
-On April 19, 1982, the petitioner filed a motion to lift
order
of
defaultdenied
- petitioner filed MR of default order- granted and
ordering it to file its answer to the complaint within
15 days from notice thereof. The petitioner had by
then, or on May 11, 1982, already filed its answer.
-MR- judge reversed its decision on default
The proceedings taken subsequent thereto are not
clear
from
the
record.
RTC ruled that for respondents and ordered the
defendants therein, including herein petitioner, but
excluding Atty. Ireneo Calderon, to pay unto the
private respondent the total sum of P 228,255.64 as
moral and exemplary damages, and attorney's fees.
the provision in question, Section 4 of Rule 16 of the
Rules
of
Court
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 the denial or deferment, unless the
court
provides
a
different
period.

ISSUE:WON judge erred in declaring petitioner in

default?YES
RULING:
It is undisputed that the petitioner was given an
extension of time within which to file its answer
which was to expire on January 18, 1982. On January
13, 1982, it filed a motion to dismiss which was
denied, and notice of which was served on the

petitioner on March 8, 1982. When the petitioner

filed a motion for reconsideration on March 17, 1982,
it was well within the 15-day period within which to
file the answer counted from the date it received
notice of the denial of its motion to dismiss which
was on March 8, 1982. Yet, on the erroneous belief
that the petitioner had only to its credit the balance
of the period to answer that it did not consume by
the time it filed its motion to dismiss, the respondent
Judge ruled that the filing of the motion for
reconsideration on March 17, 1982 was already
beyond the reglementary period and forthwith
declared
tile
defendant
in
default.
After declaring the petitioner in default in the order
of April 5, 1982 and after denying the motion to lift
order of default in the order of May 4, 1982, the
respondent Judge made a complete turnabout in his
order of June 10, 1982 by setting aside the default
declaration of the petitioner, giving no reason
therefor except the catch phrase "in the interest of
justice." Then, another change of mind on the part of
the respondent Judge was manifested in his order of
July 14, 1982 which reiterated the order of April 5,
1982 declaring the petitioner in default. This time,
the respondent Judge woke up to his mistake and
ruled that the petitioner had 15 days from the date it
received notice of tile denial of its motion to dismiss
on March 11, 1982 within which to file its answer
respondent Judge stubbornly persisted in maintaining
his view that the answer of the respondent to the
complaint was filed out of time by alleging two new
grounds, namely: (1) the motion for reconsideration
filed by the petitioner against the denial of its motion
to dismiss is a mere scrap of paper for lack of proof
of service; and (2) the motion for reconsideration
filed by the petitioner against the order of May 4,
1982 which denied the petitioner's motion to lift
order of default is pro-forma for being Identical to
petitioner's opposition to the plaintiff's motion to
declare
the
petitioner
in
default.
The lack of palpable merit of said grounds leads to a
natural impression that the respondent Judge was
determined to prevent the petitioner from being
given a chance to defend itself in the case filed
against it by the private respondent, contrary to
repeated exhortations and pronouncements from the
Supreme Court frowning upon judgments by default
on purely technical grounds. The new arguments
resorted to by the respondent Judge were not even
mentioned in the motion of the private respondent to
strike out the answer, nor were they mentioned by
the respondent Judge in his first order declaring the
petitioner in default. The motion to strike out filed by
the private respondent and the order of respondent
Judge dated April 5, 1982 declaring the petitioner in
default made reference only to the alleged fact that
the motion for reconsideration of the denial of the
motion to dismiss was filed beyond the reglementary
period. Such ground, as aforementioned, had been
acknowledged by the respondent Judge himself in his

order

of

July

14,

1982

to

be

erroneous.

The allegation that the motion for reconsideration of

the denial of the motion to dismiss filed by the
petitioner lacks the requisite notice of hearing and
proof of service is a factual distortion. On page 4 of
said motion for reconsideration which has been
attached as Annex "F" of the petition ,it clearly
appears that the petitioner's counsel set the said
motion for hearing on April 16, 1982 and that a copy
of the same was sent by registered mail to the
counsel for the private respondent on March 17,
1982. The private respondent filed a motion to strike
out the said motion for reconsideration thereby
showing that private A. respondent had notice of the
motion for reconsideration long before the scheduled
hearing
thereof
on
April
16,
1982.
The imputation that the motion to reconsider the
order of May 4, 1982 which denied the petitioner's
motion to lift order of default is pro-forma reveals a
misconception of the concept of pro-forma motions
for reconsideration. It is not every motion for
reconsideration that reiterates grounds or arguments
aired in a previous motion that may be declared proforma. It will be noted that the motion for
reconsideration herein involved is of an interlocutory
order, and not of a final judgment or final order.
There should be a distinction in determining whether
a motion for reconsideration may be declared proforma depending on whether it is directed against a
final judgment or order, or only against an
interlocutory order. In the case of the former, a
repetition of arguments or grounds already
sufficiently discussed in prior incidents may properly
be categorized as being merely for purposes of delay.
In the case of interlocutory orders, a reiteration of
the ground or argument previously advanced is not
necessarily indicative that the movant filed the
motion merely for gaining delay. It must be
remembered that, normally, when an interlocutory
order is sought to be reviewed or annulled by means
of any of the extra legal remedies of prohibition or
certiorari, it is required that a motion for
reconsideration of the question order must first be
filed, such being considered a speedy and adequate
remedy at law which must first be resorted to as a
condition precedent for filing of any of such
proceedings (Secs. 1 and 2, Rule 65, Rules of Court).
There is no similar requirement in taking an appeal
from a final judgment or order should the questioned
interlocutory order be subject to attack only on one
ground, as in the case of the default declaration
herein involved, a motion for reconsideration against
the order complained of would necessarily and
inevitably contain a repetition of the ground
previously alleged. In so doing, the movant is praying
the court to give his motion a second look, in the
hope that the court would realize its supposed error,
correct the same, and thereby preclude the necessity

of

seeking

relief

in

higher

tribunal.

Thereafter, respondents filed a Second Supplemental

Motion to Dismiss and Manifestation citing the
following grounds:

SPOUSES GERMAN ANUNCIACION and ANA

FERMA ANUNCIACION and GAVINO G. CONEJOS,
petitioners, vs.

1.)That the court has no jurisdiction over the

person of the defending party.

WHEREFORE, the petition is hereby granted.

PERPETUA M. BOCANEGRA and GEORGE M.

BOCANEGRA, respondents.
Facts:
PETITION for review on certiorari of the decision and
resolution of the Court of Appeals.
This is a petition for review on certiorari, assailing the
Decision, and the Resolution, of the Court of Appeals
(CA) in CA-G.R. SP No. 65516. The CA decision
affirmed the Orders of the Regional Trial Court (RTC)
of Manila, Branch 40 in Civil Case No. 00-98813
which dismissed the complaint for Quieting of Title
and Cancellation of TCT No. 122452 of petitioner
Spouses German Anunciacion and Ana Ferma
Anunciacion and their co-petitioner, Gavino G.
Conejos.
Petitioners filed before the RTC, Manila, a complaint
for Quieting of Title and Cancellation of TCT No.
122452, docketed as Civil Case No. 00-98813. The
complaint averred that defendants (respondents)
may be served with summons and legal processes
through Atty. Rogelio G. Pizarro, Jr., with office
address at 2830 Juan Luna St., Tondo, Manila. The
summons, together with the copies of the complaint,
were then served on Atty. Pizarro. The record shows
that before the filing of the said complaint, Atty.
Pizarro wrote a demand letter on behalf of
respondents and addressed to petitioner German
Anunciacion, among others, demanding that they
vacate the land owned by his clients (respondents),
who needed the same for their own use.

Respondents, through their counsel, Atty. Norby C.

Caparas, Jr., filed a Motion to Dismiss on the ground
that the complaint stated no cause of action.
Petitioners filed their Comment on the Motion to
Dismiss.
A Supplemental Motion to Dismiss and Reply to the
Comment on the Motion to Dismiss was filed by
respondents, alleging an additional ground that
petitioners failed to pay the required filing fee. The
petitioners
filed,
their
Opposition
to
the
Supplemental Motion to Dismiss and Comment to the
Reply to the Comment on the Motion to Dismiss.

2.)That the court has no jurisdiction over the

subject matter of the claim.
3.)That the pleading asserting the claim states no
cause of action.
Petitioners then filed their Additional Comment on
the Motion to Dismiss, Supplemental Motion to
Dismiss and Comment on the Second Supplemental
Motion to Dismiss.
The trial court sustained the respondents and
dismissed the complaint for lack of jurisdiction over
the persons of respondents as defendants.
Aggrieved, petitioners filed before the CA a Petition
for Certiorari, seeking the nullification of the RTC
Orders, on the ground that the said orders were
issued with grave abuse of discretion.
The CA dismissed the petition upon finding that there
was no waiver of the ground of lack of jurisdiction on
the part of respondents in the form of voluntary
appearance. Applying Section 20, Rule 14 of the
1997 Rules of Civil Procedure, the CA held that
although the grounds alleged in the two (2) earlier
Motion to Dismiss and Supplemental Motion to
Dismiss were lack of cause of action and failure to
pay the required filing fee, the filing of the said
motions did not constitute a waiver of the ground of
lack of jurisdiction on their persons as defendants.
The CA then concluded that there was no voluntary
appearance on the part of respondents/defendants
despite the filing of the aforesaid motions. The CA
also rejected petitioners contention that the service
made to Atty. Rogelio Pizarro, Jr. was deemed service
upon respondents/defendants.
In the case at bench, service upon Atty. Pizarro did
not fall under the aforequoted rule and therefore
cannot qualify as substituted service. Since the
service made by Petitioners was defective, the Public
Respondent court never did acquire jurisdiction over
the persons of defendants and therefore correctly
ordered the dismissal of the complaint.
Petitioners moved for a reconsideration of the
decision but it, too, was denied by the CA in its
Resolution.
Hence, the instant petition.
The Court gave due course to the petition and
required the parties to submit their respective

memoranda. In compliance, the respondents filed

their Memorandum, while the petitioners filed their
Memorandum.
Ruling:
We find merit in the petition.
Respondents, through counsel, filed a motion to
dismiss, with only one ground, i.e., that the pleading
asserting the claim states no cause of action.
Under this ground, respondents raised the issues
quoted hereunder:
I.Defendants anchored their
WRONG Decree of Registration;

complaint

on

II.The Government of the Republic of the

Philippines has recognized the authenticity of TCT No.
122452; and
III.Plaintiffs do NOT have the legal personality to
quiet the title of the subject property.
The filing of the above-mentioned Motion to Dismiss,
without invoking the lack of jurisdiction over the
person of the respondents, is deemed a voluntary
appearance on the part of the respondents under the
aforequoted provision of the Rules.
The same
conclusion can be drawn from the filing of the
Supplemental Motion to Dismiss and Reply to the
Comment on the Motion to Dismiss which alleged, as
an additional ground for the dismissal of petitioners
complaint, the failure of plaintiffs to pay the required
filing fee again but failed to raise the alleged lack of
jurisdiction of the court over the person of the
respondents.
It was only in respondents Second Supplemental
Motion to Dismiss dated November 27, 2000 that
respondents for the first time raised the courts lack
of jurisdiction over their person as defendants on the
ground that summons were allegedly not properly
served upon them. The filing of the said Second
Supplemental Motion to Dismiss did not divest the
court of its jurisdiction over the person of the
respondents who had earlier voluntarily appeared
before the trial court by filing their motion to dismiss
and the supplemental motion to dismiss. The
dismissal of the complaint on the ground of lack of
jurisdiction over the person of the respondents after
they had voluntarily appeared before the trial court
clearly constitutes grave abuse of discretion
amounting to lack of jurisdiction or in excess of
jurisdiction on the part of the RTC.
Quite apart from their voluntary appearance,
respondents Supplemental Motion to Dismiss and
Second Supplemental

Motion to Dismiss were clearly in violation of Rule 15,

Section 8 in relation to Rule 9, Section 1 of the Rules.
Respondents failure to raise the alleged lack of
jurisdiction over their persons in their very first
motion to dismiss was fatal to their cause. They are
already deemed to have waived that particular
ground for dismissal of the complaint. The trial court
plainly abused its discretion when it dismissed the
complaint on the ground of lack of jurisdiction over
the person of the defendants. Under the Rules, the
only grounds the court could take cognizance of,
even if not pleaded in the motion to dismiss or
answer, are: (a) lack of jurisdiction over the subject
matter; (b) existence of another action pending
between the same parties for the same cause; and
(c) bar by prior judgment or by statute of limitations.
We likewise cannot approve the trial courts act of
entertaining supplemental motions to dismiss which
raise grounds that are already deemed waived. To do
so would encourage lawyers and litigants to file
piecemeal objections to a complaint in order to delay
or frustrate the prosecution of the plaintiffs cause of
action.
To be sure, a trial court should be cautious before
dismissing complaints on the sole ground of improper
service of summons considering that it is well within
its discretion to order the issuance and service of
alias summons on the correct person in the interest
of substantial justice.
Accordingly, the Court finds that the CA erred in
dismissing the petition and affirming the challenged
orders of the RTC which dismissed the complaint on
the ground of lack of jurisdiction over the person of
the respondents who were the defendants.
WHEREFORE, the petition is hereby GRANTED. The
CAs Decision and the Resolution in CA-G.R. SP No.
65516 affirming the Orders of the RTC in Civil Case
No. 00-98813 are reversed and set aside.
Consequently, Civil Case No. 00-98813 is hereby
ordered REINSTATED.
G.R. No. 176014

September 17, 2009

CARMELITA T. PANGANIBAN, petitioner,

vs.
PILIPINAS SHELL PETROLEUM CORPORATION,
respondent.
FACTS:

Petitioner entered into a Sublease and

Dealer Agreement (SLDA) with Respondent

Respondent leased a gasoline

station
o
Respondent is not the owner of the
lot
subject
of
the
lease;
Respondent is only leasing the lot
from the owner, Serafin Vasquez,
pursuant to a lease agreement
effective for 15 years.
In a letter, private respondent notified
petitioner that the SLDA was expiring.
Believing that the SLDA had not yet expired
and was still effective until December 31,
2002, petitioner continued to pay rentals for
the gasoline station.
o
Private respondent refused to
accept the payments.
Petitioner filed a Petition for Declaratory
Relief with the RTC of Makati
o
Respondent filed an Answer.
Respondent filed an Unlawful Detainer case
against Petitioner with the MTC of Caloocan
o
8 months after filing its Answer,
Respondent filed a Manifestation
with Motion to Dismiss. Private
respondent claimed that the issue
of the renewal of the lease should
be raised in the unlawful detainer
case
pending
before
the
Metropolitan Trial Court.
Petitioner moved for the suspension of the
proceedings since the other case filed with
the Regional Trial Court involved the same
parties and issues. DENIED
MTC decided in favor of the Respondents
(Unlawful Detainer case)
o
Ordered Petitioner to vacate the
premises and surrender possession
thereof and to pay Respondents
Petitioner appealed from the said decision
which is now pending with the RTC of
Caloocan
RTC ordered the dismissal of the Petition for
Declaratory Relief
o
Considering that there has been a
breach of the SLDA and that an
ejectment case has been filed, this
petition is no longer proper
RTC denied the MR of Petitioner for failure of
the latter to appear at the hearing
Petitioner filed a petition for review under
Rule 45 of the Rules of Court with the
Supreme Court
o
SC issued a Resolution referring the
said Petition to the CA
CA denied the petition
o
Denied the Petition for Declaratory
Relief on the ground of litis
pendentia

The case of Declaratory

Relief should be abated in
o

favor of the case for

Unlawful Detainer
With
regard
to
Petitioners
contention that it is this Court
which has jurisdiction over her
petition, the CA pointed out that it
was merely yielding to the Courts
order; Accordingly, the CA has
concurrent jurisdiction with this
Court and there is no special
reason for this Court to take
Cognizance of the case

ISSUE: Whether the CA erred in affirming the

dismissal of the case on the ground of litis pendentia
which was filed long after the Respondent filed its
Answer?
RULING:
Close but no cigar. NO!

The Court of Appeals applied Rosales and University

Physicians Services, Inc. in sustaining the dismissal
of the action for declaratory relief to give way to the
ejectment suit.
o

Rosales Case:

Lessee filed an action for

continued enforcement of
the lease contract

Lessor filed a case for

unlawful detainer

Lessor filed a MTD the

complaint of the Lessee
because of the pendency
of the ejectment case

Lesse filed a MTD for the

dismissal of the ejectment
case also on the ground of
litis pendentia contending
that the case he file
earlier
should
be
entertained first

Court held that if

the plaintiff has
any right to the
extension of the
lease at all, such
right is a proper
and
legitimate
issue that could
be raised in the
unlawful detainer
case because it
may be used as a
defense to the

action.' In other
words, the matter
raised
in
the
Court
of
First
instance
of
Cavite may be
threshed out in
the
ejectment
suit,
in
consonance with
the
principle
prohibiting
multiplicity
of
suits. And the
mere fact that
the
unlawful
detainer
case
was filed later,
would not change
the situation to
depart from the
application of the
foregoing rule
University Physician Services Case:

The issue of whether

private respondent had
the right to occupy the
subject apartment unit
should
therefore
be
properly threshed out in
an ejectment suit and not
in an action for damages
where the question of
possession is likewise the
primary
issue
to
be
resolved

The requirement that a motion to dismiss should be

filed within the time for filing the answer is not
absolute. Even after an answer has been filed, a
defendant can still file a motion to dismiss on the
following grounds:
(1) Lack of jurisdiction,
(2) Litis pendentia,

The identity of parties, or at least such

as representing the same interests in
both actions;
The identity of rights asserted and relief
prayed for, the relief being founded on
the same facts;
The identity of the two cases such that
judgment in one, regardless of which
party is successful, would amount to res
judicata in the other

Petitioner questions the preference given by the RTC

and the CA to the unlawful detainer case filed by
private respondent. Petitioner maintains that based
on priority in time, the action for declaratory relief,
the case filed earlier, should not have been abated in
favor of the ejectment suit, a case filed much later.
Litis pendentia as a ground for the dismissal of a civil
action refers to that situation wherein another action
is pending between the same parties for the same
cause of actions and that the second action becomes
unnecessary and vexatious.
We have set the relevant factors that a court must
consider when it has to determine which case should
be dismissed given the pendency of two actions:

ii

iii

The date of filing, with

preference generally
given to the first
action filed to be
retained
Whether the action
sought
to
be
dismissed was filed
merely to preempt
the latter action or to
anticipate its filing
and lay the basis for
its dismissal
Whether the action is
the
appropriate
vehicle for litigating
the issues between
the parties

(3) Lack of cause of action, and;

(4) Discovery during trial of evidence that
would constitute a ground for dismissal
Litis pendentia is also one of the grounds that
authorize a court to dismiss a case motu proprio.
In this case, the bona
pendentia is beyond dispute.
Requisites of litis pendentia:

fide existence

of litis

The mere fact that the action for declaratory relief

was filed earlier than the case for unlawful detainer
does not necessarily mean that the first case will be
given preference.
In Cruz v. Court of Appeals, we have ruled that the
earlier case can be dismissed in favor of the later
case if the later case is the more appropriate forum
for the ventilation of the issues between the parties.

Clearly, the interpretation of a provision in the SLDA

as to when the SLDA would expire is the key issue
that would determine petitioner's right to possess the
gasoline service station. When the primary issue to
be resolved is physical possession, the issue should
be threshed out in the ejectment suit, and not in any
other case such as an action for declaratory relief to
avoid multiplicity of suits. Moreover, the Metropolitan
Trial Court had already resolved the unlawful detainer
case in favor of private to respondent even before
the Regional Trial Court dismissed the action for
declaratory relief.
It would have been an exercise in futility for the
Regional Trial Court to continue the proceedings in
the action for declaratory relief when the
Metropolitan Trial Court had already ruled that the
term of the SLDA was for only five years. Also, the
decision of the MTC would amount to res judicata
should it attain finality.

Laches definitely had not yet set in when private

respondent filed the unlawful detainer case 269 days
after the expiration of the SLDA. Private respondent
did not sleep on its right when it filed the unlawful
detainer case well within the prescriptive period for
filing the action
Private respondent therefore shall one year or 365
days from July 31, 1995 to file the case for unlawful
detainer; The expiration of the term of the lease
immediately gives rise to a cause of action, of which
a demand is no longer necessary.

Universal Robina Corporation vs Albert Lim GR

154338 October 5, 2007
Facts:

Petitioner sold to respondent grocery

products
in
the
total
amount
of
P808,059.88.
After
tendering
partial
payments,
respondent refused to settle his obligation
despite petitioners repeated demands.
Petitioner then filed with the RTC, Quezon
City, a complaint against respondent for a
sum of money.
The trial Court issued an Order
dismissing the complaint motu proprio
on ground of lack of jurisdiction and
improper venue because the plaintif
corporation has its principal office at
Pasig City and the defendant is from
Laoag City.
Petitioner filed a MR together with an
amended complaint alleging that the parties
agreed that the proper venue for any
dispute relative to the transaction is Quezon
City.

The trial court granted the motion and

admitted petitioners amended complaint.
Summons was served upon respondent but
failed to file an answer seasonably. Upon
motion of the petitioner, the trial court
issued an Order declaring him in default and
allowing petitioner to present its evidence
ex parte.
However, the trial court was still unsure
whether venue was properly laid, thus it
issued an order directing petitioner to file a
memorandum of authorities on whether it
can file a complaint in QC.
Subsequently the trial court again
issued
an
order
dismissing
the
complaint on the ground of improper
venue for the reason that there is no
connection whatsoever between QC
and the parties. The official place of
business is Pasig and the defendants
residence is Laoag City were all
stipulated in the Complaint. But the
stipulation of the proper filing is at the
back of the delivery receipt saying that
the venue shall be in QC was not stated
in the complaint nor admitted to have
been signed by the defendant.
Petitioner filed a MR but was denied by the
trial court.
Petitioner then filed with the CA a petition
for review. But it was dismissed due to
petitioners failure to attach an explanation
why copies of the petition were not served
by personal service but by registered mail,
in violation of Sec. 11, Rule 14 of 1997 Rules
of Civil Procedure. Petitioner filed a MR but it
was also denied.
Hence, this petition for Review on Certiorari
under Rule 45.

Issue: W/N the trial court may dismiss motu proprio

petitioners complaint on the ground of improper
venue.
Held: No trial court cannot motu proprio dismiss
petitioners complain on the ground of improper
venue.
Clearly, in personal actions, the plaintiff may
commence an action either in the place of his or her
residence or the place where the defendant resides.
However, the parties may agree to a specific venue
which could be in a place where neither of them
resides.
Sec. 1, Rule 9 of the same Rules provides for
instances when the trial court may motu proprio
dismiss a claim, thus:
Section 1. Defenses and objections not pleaded.
Defenses and objections not pleaded either in
a motion to dismiss or in the answer are

deemed waived. However, when it appears from

the pleadings or the evidence on record that the
court has no jurisdiction over the subject matter, that
there is another action pending between the same
parties for the same cause, or that the action is
barred by a prior judgment or by statute of
limitations, the court shall dismiss the claim.
In Dacoycoy v. Intermediate Appellate Court, this
Court held that a trial court may not motu proprio
dismiss a complaint on the ground of improper venue
because justice and fairness take primary importance
and the fact that the defendant failed to challenge
the venue in a motion to dismiss, thus he cannot on
appeal or in a special action be permitted to
challenge the wrong venue, which is deemed waived.
In Rudolf Lietz Holdings Inc. v. Registry of Deeds of
Paraaque, the Court likewise held that a trial court
may not motu proprio dismiss a complaint on the
ground of improper venue, thus:
Rule 9, Section 1 of the 1997 Rules of Civil Procedure
states that defenses and objections not pleaded
either in a motion to dismiss or in the answer are
deemed waived. The court may only dismiss an
action motu proprio in case of lack of
jurisdiction over the subject matter, litis
pendentia, res judicata and prescription.
Therefore, the trial court in this case erred
when it dismissed the petition motu proprio. It
should have waited for a motion to dismiss or a
responsive pleading from respondent, raising
the objection or affirmative defense of
improper
venue,
before
dismissing
the
petition. Petition for Review is Granted
BENEDICTO
RAMOS,
petitioner,
vs.
HON. ELVIRO L. PERALTA, Presiding Judge,
Branch XVII, Court of First Instance of Manila,
SPOUSES JUVENCIO ORTANEZ and JULIANA S.
ORTANEZ, MINDANAO INSURANCE CO., INC. and
P. R. ROMAN, INC., respondents.

receivership and liquidation on June 20,

1968.

Thereafter
on
February
23,
1976,
respondent P. R. Roman, Inc. purchased from
Mindanao Insurance the Salgado fishpond.

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.

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 an action 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 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. (PLS. TAKE NOTE)

Facts:

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.

Unknown to petitioner, title 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.,

said
corporation
was
placed
under

to his Manila consignation Civil

because they involve different issues.

Respondent CFI of Manila issued an order

dismissing consignation case.
o

for the reason, principally, that

there is already a case pending
between the same parties and for
the same cause in Court of First
Instance of Bataan, which is
precisely for the ownership of the
subject matter of the property
allegedly leased to the plaintiff
herein.
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 thirdparty
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.
Petitioner
moved
reconsideration,
but
unsuccessful.

Case

Quieting of title case 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, Consignation case was filed on

August 2, 1976, ahead of Quieting of title
case which was filed on a much later date,
August 13, 1976, after the Manila CFI had
already acquired jurisdiction over the
consignation case.

for
was

Respondents contention:

Hence this
CERTIORARI.

petition

FOR

REVIEW

ON

Private respondents counter that 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 efect 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 bow 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.

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.
Petitioners contention:

Issue: Whether petitioners contention is meritorious.

Petitioner contends that the Bataan

quieting-of-title case cannot serve as a bar

Held: No.

leasehold rights and right of

occupation.

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:

In the last analysis, therefore, the

issue involved in the consignation
case 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

quieting case.

Although an action for quieting of

title refers to ownership, P. R.
Roman, Inc. in its complaint in the
quieting case also raised its right of
possession over the fish pond.

(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.

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
quieting of title case are not the same as
the parties in the consignation case.
o

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 quieting case
and consignation case, particularly
as he filed a third party complaint
in the quieting case against the
spouses Ortanez and Mindanao
Insurance.

Anent the second element, petitioners

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.
o

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

RES JUDICATA

Whatever decision may be handed down in

The Quieting case would constitute res
judicata in the consignation case 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 profered payment of
rentals; otherwise, he may not do so.
VENUE

Petitioner next contends that the dismissal

of the consignation case 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 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.

The 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.

At any rate, petitioner cannot complain of

any
inconvenience
arising
from
the
dismissal of the consignation case.

Being the defendant in the quieting of title

case, 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.

Guzman as their attorney-in-fact to sell their

property.

Pursuant to her authority under the SPA, De

Guzman executed a Deed of Absolute Sale
conveying to New Vista Properties, Inc. (New
Vista) a parcel of land with an area of
242,540 square meters situated in Calamba,
Laguna.

In the deed, however, the lot thus sold was

described as lot no. 1702.

Following the sale, New Vista immediately

entered the subject lot, fenced it with
cement posts and barbed wires, and posted
a security guard to deter trespassers.

SC interpose at this point the observation

that the property delivered to and occupied
by New Vista was denominated in the SPA
as Lot No. 1735, while in the deed of
absolute sale in favor of New Vista the
object of the purchase is described as Lot
No. 1702.

The controversy arose more than a decade

later when respondent New Vista learned
that the parcel of land it paid for and
occupied, i.e., Lot No. 1702, was being
claimed by petitioners Vitangcol on the
strength of a Deed of Absolute Sale for Lot
No. 1702 entered into on August 14, 2001
by and between Vitangcol and Maria Alipit.

New Vista lost no time in protecting its

rights by, first, filing a notice of adverse
claim over the certificate of title, followed by
commencing a suit for quieting of title
before the RTC.

Vitangcol moved to dismiss the complaint

which New Vista duly opposed. An exchange
of pleadings then ensued.

On June 27, 2003, or before Maria Alipit and

Vitangcol could answer, New Vista filed an
amended complaint, appending thereto
a copy of the 1989 deed of absolute
sale De Guzman, as agent authorized
agent of the Alipits, executed in its
favor.

Thereafter, Vitangcol filed a motion to

dismiss, followed by a similar motion

LITIS PENDENCIA

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

the quieting of title case and the location of the
property involved, no error was committed by the
lower court in deferring to the Bataan court's
jurisdiction.
ALICE VITANGCOL and NORBERTO VITANGCOL,
Petitioners,
vs.
NEW VISTA PROPERTIES, INC., MARIA ALIPIT,
REGISTER OF DEEDS OF CALAMBA, LAGUNA,
and the HONORABLE COURT OF APPEALS
Respondents.
Facts:

Subject of the instant controversy is lot in

the name of Maria A. Alipit and Clemente A.
Alipit, married to Milagros.

On June 18, 1989, Maria and Clemente A.

Alipit, with the marital consent of the
latters wife, executed a Special Power of
Attorney (SPA) constituting Milagros A. De

interposed by Maria Alipit which New Vista

countered with an opposition.
Unlike in its original complaint, New
Vistas amended complaint did not
have, as attachment, the SPA. (PLS.
TAKE NOTE)

It, however, averred that Clemente and

Maria Alipit had ratified and validated the
sale of Lot No. 1702
by their having
delivered possession of said lot to New Vista
after receiving and retaining the purchase
price therefor.

Ruling of the RTC

The trial court denied Vitangcols and Maria

Alipits separate motions to dismiss the
amended complaint.

As there held by the RTC, the amended

complaint sufficiently stated a cause of
action.

From the above order, Vitangcol sought

reconsideration.

RTC granted reconsideration and dismissed

the amended complaint.

In reversing itself, the RTC made much of

the fact that New Vista did not attach the
SPA to the amended complaint. To the RTC,
this omission is fatal to New Vistas cause of
action for quieting of title, citing in this
regard the pertinent rule when an action is
based on a document.

Issue: Whether lack of cause of action is a ground

for a dismissal of the complaint through a
motion to dismiss under Rule 16 of the ROC.
Held: No.

Lack of cause of action is not a ground for a

dismissal of the complaint through a motion
to dismiss under Rule 16 of the Rules of
Court.

For the determination of a lack of cause of

action can only be made during and/or after
trial.

What is dismissible via that mode is

FAILURE OF THE COMPLAINT TO STATE
A CAUSE OF ACTION

Sec. 1(g) of Rule 16 of the Rules of Court

provides that a motion may be made on the
ground "that the pleading asserting the
claim states no cause of action."

The rule is that in a motion to dismiss, a

defendant hypothetically admits the truth of
the material allegations of the ultimate facts
contained in the plaintiffs complaint.

When a motion to dismiss is grounded on

the failure to state a cause of action, a
ruling thereon should, as a rule, be based
only on the facts alleged in the complaint.

However, this principle of hypothetical

admission admits of exceptions.

Among others, there is no hypothetical

admission of conclusions or interpretations
of law which are false; legally impossible
facts; facts inadmissible in evidence; facts
which appear by record or document
included in the pleadings to be unfounded;
allegations which the court will take judicial
notice are not true; and where the motion to
dismiss was heard with submission of
evidence which discloses facts sufficient to
defeat the claim.

New Vistas threshold contention that De

Guzmans SPA to sell should not be
considered for not having been incorporated
as part of its amended complaint is incorrect
since Vitangcol duly submitted that piece of
document in court in the course of the June
7, 2004 hearing on the motion to dismiss.

Aggrieved, New Vista interposed an appeal

before the CA.

Ruling of the CA

CA reversed the RTC Order, reinstating New

Vistas amended complaint for quieting of
title, and directing Vitangcol and Maria Alipit
to file their respective answers thereto.

CA
denied
Vitangcols
reconsideration.

Hence, the instant petition.

motion

for

Thus, the trial court acted within its

discretion in considering said SPA relative to
the motion to dismiss the amended
complaint.

The trial court, however, erred in ruling that,

taking said SPA into account, the amended
complaint stated no cause of action.

Indeed, upon a consideration of the amended

complaint, its annexes, with the June 18, 1989 SPA
thus submitted, the Court is inclined, in the main, to
agree with the appellate court that the amended
complaint sufficiently states a cause of action.
COLUMBIA PICTURES, INC., ORION PICTURES
CORPORATION
vs.COURT OF APPEALS, SUNSHINE HOME VIDEO,
INC. and
FACTS: Petitioners are foreign corporations not
licensed to do business in the Philippines.
Complainants (herein petitioners) lodged a formal
complaint with the NBI for violation of PD No. 49
(Decree on Protection of Intellectual Property), as
amended, and sought its assistance in their anti-film
piracy drive.
Among the grounds of respondents for a motion to
dismiss under the Rules of Court are lack of legal
capacity to sue and that the complaint states no
cause of action.
Private respondents aver that being foreign
corporations, petitioners should have such license to
be able to maintain an action in Philippine courts. In
so challenging petitioners' personality to sue, private
respondents point to the fact that petitioners are the
copyright owners or owners of exclusive rights of
distribution in the Philippines of copyrighted motion
pictures or films, and also to the appointment of Atty.
Rico V. Domingo as their attorney-in-fact, as being
constitutive of "doing business in the Philippines"
under Section 1 (f)(1) and (2), Rule 1 of the Rules of
the Board of Investments.
As foreign corporations doing business in the
Philippines, Section 133 of Batas Pambansa Blg. 68,
or the Corporation Code of the Philippines, denies
them the right to maintain a suit in Philippine courts
in the absence of a license to do business.
Consequently, they have no right to ask for the
issuance of a search warrant.
The Corporation Code provides:

Sec. 133. Doing business without a

license. No foreign corporation
transacting
business
in
the
Philippines without a license, or its
successors or assigns, shall be
permitted to maintain or intervene
in any action, suit or proceeding in
any court or administrative agency
of the Philippines; but such
corporation may be sued or
proceeded
against
before
Philippine courts or administrative
tribunals on any valid cause of
action recognized under Philippine
laws.
ISSUE: WON case should be dismissed for petitioners
lack of legal capacity to sue?
Held: NO. (It is merely respondents procedural
tactic)
Lack of legal capacity to sue means that the
plaintiff is not in the exercise of his civil rights, or
does not have the necessary qualification to appear
in the case, or does not have the character or
representation he claims.
On the other hand, a case is dismissible for
lack of personality to sue upon proof that the
plaintif is not the real party in interest, hence
grounded on failure to state a cause of action.
The term "lack of capacity to sue" should not be
confused with the term "lack of personality to
sue." While the former refers to a plaintiff's general
disability to sue, such as on account of minority,
insanity, incompetence, lack of juridical personality
or any other general disqualifications of a party, the
latter refers to the fact that the plaintiff is not the
real party in interest.
Correspondingly, "lack of capacity to sue" can be
a ground for a motion to dismiss based on the
ground of lack of legal capacity to sue (Rule 16
Section 1(d)); whereas the term "lack of
personality to sue" can be used as a ground for a
motion to dismiss based on the fact that the
complaint, on the face thereof, evidently states
no cause of action. (Rule 16 Section 1(g));
The ground available for barring recourse to our
courts by an unlicensed foreign corporation doing or
transacting business in the Philippines should
properly be "lack of capacity to sue," NOT "lack
of personality to sue." Certainly, a corporation
whose legal rights have been violated is undeniably
such, if not the only, real party in interest to bring

suit thereon although, for failure to comply with

the licensing requirement, it is not capacitated
to maintain any suit before our courts.
This Court's REJECTS the common procedural
tactics of erring local companies which, when
sued by unlicensed foreign corporations not
engaged in business in the Philippines, invoke
the latter's supposed lack of capacity to sue.
The doctrine of lack of capacity to sue based on
failure to first acquire a local license is based on
considerations of public policy. It was never intended
to favor nor insulate from suit unscrupulous
establishments or nationals in case of breach of valid
obligations or violation of legal rights of unsuspecting
foreign firms or entities simply because they are not
licensed to do business in the country.
GAUDENCIO GUERRERO, petitioner, vs.
REGIONAL TRIAL COURT OF ILOCOS NORTE, BR.
XVI, JUDGE LUIS B. BELLO, JR., PRESIDING, AND
PEDRO G. HERNANDO, respondents.
Facts:
PETITION for review of the orders of the Regional Trial
Court of Ilocos Norte.
Filed by petitioner as an accion publiciana against
private respondent, this case assumed another
dimension when it was dismissed by respondent
Judge on the ground that the parties being brothersin-law the complaint should have alleged that
earnest efforts were first exerted towards a
compromise.
Admittedly, the complaint does not allege that the
parties exerted earnest efforts towards a compromise
and that the same failed. However, private
respondent Pedro G. Hernando apparently overlooked
this alleged defect since he did not file any motion to
dismiss nor attack the complaint on this ground in his
answer. It was only at the pre-trial conference, that
the relationship of petitioner Gaudencio Guerrero and
respondent Hernando was noted by respondent
Judge Luis B. Bello, Jr., they being married to halfsisters hence are brothers-in-law, and on the basis
thereof respondent Judge gave petitioner five (5)
days to file his motion and amended complaint to
allege that the parties were very close relatives, their
respective wives being sisters, and that the
complaint to be maintained should allege that
earnest efforts towards a compromise were exerted
but failed. Apparently, respondent Judge considered
this deficiency a jurisdictional defect.
Guerrero moved to reconsider the Order claiming
that since brothers by affinity are not members of the
same family, he was not required to exert efforts

towards a compromise. Guerrero likewise argued that

Hernando was precluded from raising this issue since
he did not file a motion to dismiss nor assert the
same as an affirmative defense in his answer.
Respondent
Judge
denied
the
motion
for
reconsideration holding that [f]ailure to allege that
earnest efforts towards a compromise is jurisdictional
such that for failure to allege same the court would
be deprived of its jurisdiction to take cognizance of
the case. He warned that unless the complaint was
amended within five (5) days the case would be
dismissed.
The 5-day period having expired without Guerrero
amending his complaint, respondent Judge dismissed
the case, declaring the dismissal however to be
without prejudice.
Guerrero appeals by way of this petition for review
the dismissal by the court a quo. He raises these
legal issues:
(a) whether brothers by affinity are considered
members of the same family contemplated in Art.
217, par. (4), and Art. 222 of the New Civil Code, as
well as under Sec. 1, par. (j), Rule 16, of the Rules of
Court requiring earnest efforts towards a compromise
before a suit between them may be instituted and
maintained; and,
(b) whether the absence of an allegation in the
complaint that earnest efforts towards a compromise
were exerted, which efforts failed, is a ground for
dismissal for lack of jurisdiction.
Ruling:
Considering that Art. 151 herein-quoted starts with
the negative word No, the requirement is
mandatory that the complaint or petition, which must
be verified, should allege that earnest efforts towards
a compromise have been made but that the same
failed, so that, [i]f it is shown that no such efforts
were in fact made, the case must be dismissed.
Further, Art. 151 is complemented by Sec. 1, par. (j),
Rule 16, of the Rules of Court which provides as a
ground for a motion to dismiss (t)hat the suit is
between members of the same family and no earnest
efforts towards a compromise have been made.
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 Gay on v.
Gayon that the enumeration of brothers and sisters
as members of the same family does not
comprehend sisters-in-law. In that case, then Chief
Justice Concepcion emphasized that sisters-in-law
(hence, also brothers-in-law) are not listed under
Art. 217 of the New Civil Code as members of the

same family. Since Art. 150 of the Family Code

repeats essentially the same enumeration of
members of the family, we find no reason to alter
existing jurisprudence on the matter. Consequently,
the court a quo erred in ruling that petitioner
Guerrero, being a brother-in-law of private
respondent Hernando, was required to exert earnest
efforts towards a compromise before filing the
present suit.
In his Comment, Hernando argues that x x x x
although both wives of the parties were not
impleaded, it remains a truism that being spouses of
the contending parties, and the litigation involves
ownership of real property, the spouses interest and
participation in the land in question cannot be
denied, making the suit still a suit between halfsisters x x x x
Finding this argument preposterous, Guerrero
counters in his Reply that his wife has no actual
interest and participation in the land subject of the
xxx suit, which the petitioner bought, according to
his complaint, before he married his wife. This
factual controversy however may be best left to the
court a quo to resolve when it resumes hearing the
case.
WHEREFORE, the petition is GRANTED and the
appealed Orders are SET ASIDE. The Regional Trial
Court of Laoag City, Branch 16, or whichever branch
of the court the case may now be assigned, is
directed to continue with Civil Case No. 10084-16
with deliberate dispatch.
SUSIE CHAN-TAN v JESSE C. TAN,

FACTS:
*
Petitioner and respondent were married but
later petitioner filed a case for the annulment of the
marriage under Article 36 of the Family Code. The
parties submitted to the court a compromise
agreement
approved
*
RTC -rendered a decision declaring the
marriage void under Article 36 of the Family Code on
the ground of mutual psychological incapacity of the
parties. The trial court incorporated in its decision
the compromise agreement of the parties on the
issues of support, custody, visitation of the children,
and
property
relations.
*petitioner left the country bringing the children with
her.
*Respondent filed an omnibus motion seeking in the
main custody of the children. The evidence
presented by respondent established that petitioner
brought the children out of the country without his
knowledge and without prior authority of the trial
court; petitioner failed to pay the P8,000,000
remaining balance for the Megaworld property which,

if forfeited would prejudice the interest of the

children; and petitioner failed to turn over to
respondent documents and titles in the latters
name-GRANTED
*Petitioner filed MR alleging denial of due process on
account of accident, mistake, or excusable
negligence-DENIED which was filed beyond the 15day reglementary period. It also declared petitioner
in contempt of court for non-compliance with the
partial judgment and the 17 May 2004 resolution.
*petitioner filed a motion to dismiss and a motion for
reconsideration of the Resolution. She claimed she
was no longer interested in the suit. Petitioner stated
that the circumstances in her life had led her to the
conclusion that withdrawing the petition was for the
best interest of the children. She prayed that an
order be issued vacating all prior orders and leaving
the parties at the status quo ante the filing of the
suit-DENIED It held that the 30 March 2004 decision
and the 17 May 2004 resolution had become final
and executory upon the lapse of the 15-day
reglementary period without any timely appeal
having
been
filed
by
either
party.
The Courts Ruling: The petition has no merit.
*** Petitioner further claims the trial court erred in
applying to her motion to dismiss Section 7 of the
Rule on the Declaration of Absolute Nullity of Void
Marriages and Annulment of Voidable Marriages.
Petitioner argues that if indeed the provision is
applicable, the same is unconstitutional for setting
an obstacle to the preservation of the family.
***Respondent stresses neither petitioner nor her
counsel appeared in court at the hearings on
respondent's omnibus motion or on petitioners
motion
to
dismiss.
SEC. 7. Motion to dismiss. No motion to dismiss
the petition shall be allowed except on the ground of
lack of jurisdiction over the subject matter or over
the parties; provided, however, that any other
ground that might warrant a dismissal of the case
may be raised as an affirmative defense in an
answer.
The clear intent of the provision is to allow
the respondent to ventilate all possible defenses in
an answer, instead of a mere motion to dismiss, so
that judgment may be made on the merits. In
construing a statute, the purpose or object of the law
is an important factor to be considered. Further, the
letter of the law admits of no other interpretation but
that the provision applies only to a respondent, not a
petitioner. Only a respondent in a petition for the
declaration of absolute nullity of void marriage or the
annulment of voidable marriage files an answer
where any ground that may warrant a dismissal may
be raised as an affirmative defense pursuant to the
provision. The only logical conclusion is that Section
7 of the Rule does not apply to a motion to dismiss

filed by the party who initiated the petition for the

declaration of absolute nullity of void marriage or the
annulment
of
voidable
marriage.
Since petitioner is not the respondent in the
petition for the annulment of the marriage, Section 7
of the Rule does not apply to the motion to dismiss
filed by her. Section 7 of the Rule not being
applicable,
petitioners
claim
that
it
is
unconstitutional for allegedly setting an obstacle to
the preservation of the family is without basis.
Section 1 of the Rule states that the Rules of
Court applies suppletorily to a petition for the
declaration of absolute nullity of void marriage or the
annulment of voidable marriage. In this connection,
Rule 17 of the Rules of Court allows dismissal of the
action upon notice or upon motion of the plaintiff, to
wit:
Section 1. Dismissal upon notice by plaintiff. A
complaint may be dismissed by the plaintiff by filing
a notice of dismissal at any time before service of the
answer or of a motion for summary judgment. Upon
such notice being filed, the court shall issue an order
confirming
the
dismissal.
x
x
x

Section 2. Dismissal upon motion of plaintiff.

Except as provided in the preceding section, a
complaint shall not be dismissed at the plaintiffs
instance save upon approval of the court and upon
such terms and conditions as the court deems
proper.
x
x
x
(Emphasis
supplied)
However, when petitioner filed the motion to
dismiss on 4 November 2004, the 30 March 2004
decision and the 17 May 2004 resolution of the trial
court had long become final and executory upon the
lapse of the 15-day reglementary period without any
timely appeal having been filed by either party. The
30 March 2004 decision and the 17 May 2004
resolution may no longer be disturbed on account of
the belated motion to dismiss filed by petitioner. The
trial court was correct in denying petitioners motion
to dismiss. Nothing is more settled in law than that
when a judgment becomes final and executory, it
becomes
immutable
and
unalterable.
WHEREFORE, we DENY the petition for review..