MILAGROS VALENCIA-NAVARRO, PLAINTIFF-APPELLEE, VS. SPOUSES FELICIA AND ERNESTO SIMPLICIANO, DEFENDANTS-APPELLANTS.
REYES-CARPIO, A., J.:
THE ANTECEDENTS
The facts of the case as culled from the records are as follows:
The present controversy involves a parcel of land located at Barangay Bancao-Bancao, Puerto Princesa City, Palawan, which was previously owned and registered in the name of Eduardo V. Valencia on July 14, 1925 under OCT No. G-18. The land was later on inherited by his son, Rafael R. Valencia, and as a consequence, OCT No. G-18 was cancelled and TCT No. 9437 was transferred and registered in his name. Upon Rafael R. Valencia’s death, his heirs, herein plaintiff Milagros Valencia-Navarro, Perla M. Valencia, Edmar M. Valencia and Rafaelina M. Valencia[2], adjudicated upon themselves the said land. Resultantly, TCT No. 9437 was cancelled and TCT No. 124087 was issued in their names.
Sometime in September 1994, through stealth and without the knowledge or consent of the Valencias, the spouses Felicia and Ernesto Simpliciano[3] unlawfully occupied a portion of the subject land. When Perla came to know of this, she confronted the Simplicianos and asked them to vacate the premises. The Simplicianos then retorted that they had a pending Application for Permit and Acceptance of Conditions and Request for Survey Authority before the Community Environment and Natural Resources Office (CENRO) of Puerto Princesa involving the very same land owned by the Valencias. This prompted Perla to check with the CENRO about the pending request and application, and upon verifying that there was indeed such an application, she filed a Protest (PENRO Case No. 110) before the Provincial Environment and Natural Resources Office (PENRO).
Meantime, on May 14, 1996, the CENRO issued a Final Report[4] upon the request and application of the Simplicianos, stating that the land subject of the request and application was totally within the titled property of Rafael R. Valencia covered by TCT No. 9347. As such, the land was no longer disposable under the Public Land Act, thus, the CENRO had no jurisdiction over the Simplicianos’ request and application. The CENRO then made the following recommendations:
- Order the outright rejection of Revocable Permit Application filed by Felicia G. Simpliciano.
- Order the drapping (sic) of the PENRO Case No. 110 for lack of jurisdiction.
- Advice the Respondent, Felicia Simpliciano to vacate the area.
- Advice the Protestant to lodge her complaint before any court of jurisdiction.[5]
Thereafter, in an Order[6] dated May 23, 1996, the May 14, 1996 Final Report of the CENRO was approved by the PENRO, the dispositive portion of which reads:
“WHEREFORE, the Revocable Permit Application filed by Felicia G. Simpliciano is hereby Ordered Rejected, forfeiting all payments made thereof in favor of the government. Conformably herewith PENRO Case No. 110 is hereby Ordered dropped from records for lack of jurisdiction. Further, Applicant-Respondent Felicia G. Simpliciano is hereby advised to vacate the area and respect the absolute right of the land owner and finally the Protestant is likewise hereby advised to file her continuing complaint before any court of jurisdiction (sic) failure of the respondent to vacate the area.
SO ORDERED.”
Notwithstanding the foregoing order, the Simplicianos continued to unlawfully occupy a portion of the property covered by TCT No. 124078, thus, the Valencias, through their counsel, demanded that the former show proof of their authority to occupy the said property. The Simplicianos simply supplied Valencias’ counsel a copy of the Application for Permit and Acceptance of Conditions which was earlier rejected by the PENRO. Thus, on September 15, 1998, Milagros filed a Complaint for Recovery of Possession with Damages[7] before the RTC of Palawan and Puerto Princesa City against the Simplicianos.
In their Answer,[8] the Simplicianos contended that they timely filed a Motion for Reconsideration from the PENRO’s Order which was still pending resolution. Accordingly, Milagros had no cause of action against the Simplicianos as she failed to exhaust all administrative remedies available to her before filing the instant case.
With the filing of Simplicianos’ Answer, the case was set for pre-trial conference. Thereafter, the court a quo issued a Pre-Trial Order[9] on June 14, 1999, and trial on the merits ensued. In the course of the proceedings, however, Ernesto Simpliciano passed away on January 13, 2002, thus, a Notice of Death of Defendant [Ernesto Simpliciano] and Substitution of Party[10] was filed in court which were noted and approved respectively in an Order[11] dated July 8, 2002.
During the trial, Milagros, Perla and Norman Navarro (Milagros’ husband) took the witness stand. Milagros restated the allegations in her complaint (i.e., how they became owners of the subject property, when and how they came to know of the occupation of the Simplicianos of their land, and the circumstances leading to the filing of PENRO Case No. 110). Milagros also narrated that as early as 1924, their grandfather Eduardo fenced the subject property and planted coconut trees therein; that before 1994, they were enjoying all the fruits from the improvements on the property, but now, they could not get any benefit therefrom despite their payment of all the realty taxes imposed therein as it had already been fenced by the Simplicianos.
Perla corroborated Milagros’ testimony and added that initially, the Simplicianos occupied only a portion of the property but later on, they fenced the whole area covering about 14,000 square meters of the land. She also recalled that before 1994, they had workers making copra who had since then been barred from entering the subject premises by the Simplicianos. She admitted that they did not personally occupy the subject land and only visited the same from time to time.
As for Norman, he testified that when he first went to the subject property in February 1995, he saw the Simplicianos clearing a portion and observed that a hut and a pigpen were already constructed; and that during the lifetime of his father-in-law, Rafael Valencia, they went to the subject property which was already fenced and planted with coconut and other fruit bearing trees. He also mentioned of a particular incident when he visited the subject property with a friend and they were chased by the Simplicianos armed with bolos. Also, he noticed during one of their inspections that the Simplicianos were making an excavation as they were allegedly looking for hidden treasures.
In addition thereto, the Valencias submitted and formally offered several documentary evidence consisting of Exhs. “A”, “A-01” to “P”, most important of which are Exhs. “A” and “B” which pertain to a copy of TCT No. 9437 registered in the name of Rafael R. Valencia and TCT No. 124087, registered in the name of the heirs of Rafael R. Valencia, respectively.
On the other hand, Felicia Simpliciano, Edgar Hular, Felizardo Cayatoc and Edgardo Libiran testified for the Simplicianos.
Edgar Hular, the caretaker of the adjoining lot about 100 meters from the land cultivated by the Simplicianos, testified that as early as 1969, he witnessed the latter occupying and planting on the subject land with mahogany, gamelina, bananas and other root crops. He also attested that the Simplicianos built two nipa huts and a big house in 1970. He, however, did not know that the Valencias were the titled owners of the subject property and merely assumed that the Simplicianos owned the land simply because he had witnessed them cultivate it.
Felizardo Cayatoc, the CENRO Officer, narrated that his only participation in the case was certifying and verifying that a land is alienable and disposable. As for Edgardo Libiran, the Land Management Inspector for the CENRO Office of Puerto Princesa, he testified that he inspected the subject property in connection with the Simplicianos’ Application for Permit and Acceptance of Conditions and Request for Survey Authority. Upon inspection, he found that the subject property was not the subject of any litigation, claims or conflicts at that time. He also admitted that when they inspected the subject property applied for, they had no knowledge if it was previously titled as such function belonged to the Records Officer of the CENRO. After the inspection in 1994, he had no further knowledge what happened with the Simplicianos’ application.
Felicia Simpliciano’s testimony was, however, stricken off the record per Court’s Order[12] dated October 22, 2007.
The Simplicianos then submitted the following documentary evidence:
- Exh. “1” – Certification dated November 25, 1994 issued by the CENRO (certifying that the subject land is alienable and disposable); and
- Exh. “2” – Letter dated November 23, 1994 (reply to the Simplicianos’ Request for Survey Authority) stating that the subject land is occupied by the Simplicianos where coconuts and other fruit-bearing trees were planted; that it is not covered by any prior claim or conflict; that the Simplicianos’ cultivation and occupation is open, continuous, notorious and exclusive; and that the area applied for is alienable and disposable.[13]
On March 22, 2013, the court a quo rendered the assailed Decision,[14] the fallo of which reads:
“WHEREFORE, premises considered, judgment is hereby rendered in favour of the plaintiff and ordering defendant Felicidad Simpliciano and substitute defendants Loreta S. Baluyot, Alvin Simpliciano, Ariel Simpliciano, Aries Simpliciano, Sheryl Simpliciano their assigns or any person acting for and in their behalf to vacate the subject property and to pay the plaintiff the sum of:
- Fifty Thousand (P50,000.00) Pesos as temperate damages;
- One Thousand (P1,000.00) Pesos per month as compensation for the use of subject premises counted from September 1994 until they shall have actually vacated and delivered the same to the plaintiff;
- Ten Thousand (P10,000.00) Pesos as moral damages;
- Ten Thousand (P10,000.00) Pesos as exemplary damages;
- Twenty Thousand (P20,000.00) Pesos as attorney’s fees/
IT IS SO ORDERED.”
On May 14, 2013, the Simplicianos filed a Notice of Appeal[15], citing the following assignment of errors:
1. Whether or not the trial court has jurisdiction over the case considering that the plaintiff failed to exhaust administrative remedies. 2. Whether or not the trial court erred in ruling in favor of the plaintiff, that the plaintiff is entitled to the possession of the disputed parcel of land. 3. Whether or not the trial court erred in awarding moral, temperate and exemplary damages, assuming sans admitting that the plaintiff is entitled to the recovery of possession of the property.[16]
The appeal lacks merit.
Exhaustion of Administrative Remedies
The Simplicianos maintain that PENRO Case No. 110 has not yet been finally resolved as their Motion for Reconsideration from the Order dated May 23, 1996 was yet to be ruled upon. Accordingly, the instant case should be dismissed for failure of the Valencias to exhaust all administrative remedies available.
On the other hand, the Valencias emphasize that the Motion for Reconsideration filed by the Simplicianos simply asked the PENRO to exclude from the Order the advice-portion where the matter of vacating the subject area and respecting the ownership of the Valencias were stated. In response thereto, the PENRO issued an Order of Clarification dated September 15, 1997, excluding from the Order the advice portion but maintaining the rejection of the Simplicianos’ Revocable Permit Application and dropping from their records PENRO Case No. 110 for lack of jurisdiction.
In view of the foregoing, the Valencias contend that the principle of administrative redress has already been addressed when they filed the complaint for recovery of possession with damages on September 20, 1998 because the Simplicianos, despite the Orders issued by the PENRO, continuously occupied and refused to vacate the subject premises.
We sustain the position of the Valencias.
The records show that the Motion for Reconsideration from the May 23, 1996 Order of the PENRO filed by the Simplicianos and the Opposition thereto by the Valencias, which gave rise to the issuance of PENRO Order of Clarification[17] on September 15, 1997, were not attached and formally offered[18] by the parties.
Notwithstanding the same, the Order of Clarification explicitly states:
“ORDER OF CLARIFICATION
On 23 May 1996, a PENRO ORDER had been issued over the above-captioned case ordering the rejection of the Revocable Permit application filed by Respondent Felicia. G. Simpliciano and ordering further the dropping of the case from the rolls of active cases for lack of jurisdiction [for] considering that the land covered thereby was confirmed to be a private property covered by T.C.T. No. 9437 of Rafael R. Valencia.In the same order, the Occupant-Respondent was advised to vacate the area and the Protestant was likewise advise (sic) to file her continuing complaint before any Court of jurisdiction failure of the Respondent to take the office advice.
Upon receipt of the Order by the Respondent a Motion for Reconsideration dated June 13, 1996 was filed before the office praying to modify the Order dated May 23, 1996 to exclude therefrom the advice portion of the same Order. Opposition to the motion of the Respondent was likewise filed by the Protestant and received by the Office on July 01, 1996.
Meanwhile failure of the Respondent to vacate the subject area, the protestant have impliedly filed her continuing complaint before the Anti-Squatting Office, Puerto Princesa City who required a final action on the Motion filed by the Respondent before this Office, as evidence[d] by the Protestant’s letter dated 18 August 1997 to this office.
Acting on the Motion filed by the Respondent, it is hereby CLARIFIED that the ORDER portion of the subject Order is limited to the rejection of the application filed by the Respondent and dropping of the case and the ADVICE portion contained in the same Order had been issued in line with the moral obligation of this office suggest early resolution of the controversy and therefore the same portion need to be interpreted as purely advices and is subjective to parties freedom to ignore or to comply.
For clarification, 15 September 1997.” (Emphasis Ours)
Under Sec. 19(a) Rule 132 of the Revised Rules on Evidence, public documents include “[t]he written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country.” Verily, the Order of Clarification issued by the PENRO falls within the pale of the above provision, such issuance being its written official act in the exercise of its quasi-judicial function.
Corrolarily, Sec. 23 Rule 132 of the Rules of Court provides:
“Sec. 23. Public documents as evidence. – Documents consisting of entries in public records made in the performance of a duty of a public officer are prima facie evidence of the facts therein stated. All other public documents are evidence, even against a third person, of the fact which gave rise to their execution and of the date of the latter.” (Emphasis Ours)
Gleaned from the highlighted portion of the Order of Clarification, the Simplicianos’ Motion for Reconsideration simply asked the PENRO to “xxx modify the Order dated May 23, 1996 to exclude therefrom the advice portion of the same Order xxx”. Acting on the aforesaid motion, PENRO clarified that the Order portion of the subject Order was limited to the rejection of the application filed by the respondent and dropping of the case. On the ADVICE portion of the same Order, PENRO stated that it was issued in line with the moral obligation of said Office and had to be interpreted as purely pieces of advice subject to parties’ option whether or not to comply therewith.
Considering the May 23, 1996 Order and the September 15, 1997 Order of Clarification, it can be easily deduced that the merits of the Simplicianos’ Revocable Application Permit was finally resolved by the PENRO. Thus, insofar as the PENRO is concerned, there is nothing more to be done by it except to await the parties’ next move (which may consist of either appealing further said Order or complying with it). In this regard, the records are bereft of any indication that the Simplicianos further filed any pleading relative to the Orders issued by the PENRO as they just continued unlawfully possessing the subject premises.
Prescinding therefrom, the Simplicianos’ assertion that PENRO Case No. 110 had not yet been fully resolved when the complaint for recovery of possession with damages was filed is clearly specious. Consequently, their argument that the complaint for recovery of possession with damages should be dismissed for non-exhaustion of administrative remedies and prematurity must fail.
The Valencias are entitled to the
possession of the subject land
Also known as accion plenaria de posesion, accion publiciana is an ordinary civil proceeding to determine the better right of possession of realty independently of title. It refers to an ejectment suit filed after the expiration of one year from the accrual of the cause of action or from the unlawful withholding of possession of the realty.[19]
In the instant case, the Valencias’ basis of their better right of possession hinges on their ownership of the subject land as evidenced by TCT No. 124087 of the Register of Deeds of Puerto Princesa registered in their names as heirs of Rafael Valencia. On the other hand, the Simplicianos insist that they have a better right of possession based on the testimony of Edgar Hular that they have been cultivating the land since 1969 and that they have applied for a Revocable Permit, which, as already discussed, was, however, rejected by the PENRO in its May 23, 1996 Order.
The case of Vda. de Aguilar vs. Spouses Alfaro[20], is instructive:
“It is settled that a Torrens title is evidence of indefeasible title to property in favor of the person in whose name the title appears. It is conclusive evidence with respect to the ownership of the land described therein. It is also settled that the titleholder is entitled to all the attributes of ownership of the property, including possession. Thus, in Arambulo v. Gungab, this Court declared that the “age-old rule is that the person who has a Torrens title over a land is entitled to possession thereof.” (Emphasis supplied)
With the above jurisprudential doctrine and the pieces of evidence presented by the parties, the trial court clearly did not err in holding that the Valencias have a better right over the subject property. Valencias’ Torrens title can not be pitted against Simplicianos’ rejected Revocable Permit Application and Edgar Hular’s uncorroborated testimony that the Simplicianos have been cultivating the land since 1969 to confer to the latter a better right to possess the subject property. A title, once registered, cannot be defeated even by adverse, open and notorious possession.[21]
Hereunder quoted with Our approval is the trial court’s ratiocination on the matter, viz:
“In the instant case, there is a claim on ownership over the subject property, it is imperative for this court to dwell on the issue of ownership so as to determine who has better right to possess the subject property. Based on the evidences submitted before this court, it is established that as early as 1984, the subject property was already titled in the name of plaintiff’s father. Defendants, [on the] other hand, filed on September 9, 1994, their Application for Permit and Acceptance of Conditions with the CENRO of Puerto Princesa City. On November 23, 1994, the defendants likewise filed with the CENRO a Request for Survey Authority. Such application and request were protested by Perla Valencia, the plaintiff’s mother and co-owner resulting in PENRO Case No. 110. On May 14, 1996, the CENRO issued a Final report against the defendants finding that the property subject of PENRO Case No. 110 was within the parcel of land covered by TCT No. 124078 and rejecting the September 9, 1994 Application for Permit and Acceptance of Conditions and September 26, 1994 Request for Survey Authority which they filed with the CENRO. In an Order dated May 23, 1996, the Final Report was approved by the PENRO. On February 9, 1998, the plaintiff by counsel demanded of the defendants that they show proof of their authority to occupy the subject property. On June 5, 1998, the defendants supplied the plaintiff’s counsel with a copy of their September 9, 1994 application for Permit and Acceptance of Conditions and supporting documents, which were already finally rejected in PENRO Case No. 110. Viewed from the foregoing, this court finds the plaintiff and her co-owners have better right to possess the subject property in exercise of their right of ownership of the same compared to the defendants whose application before the CENRO had already been rejected in PENRO Case No. 110.
xxx xxx xxx
Based on the testimonial and documentary evidence presented, the plaintiff and her co-owners had priority in possession as against the defendants because the subject property was already titled in the name of plaintiff’s father, Rafael Valencia as early as 1984. “Under the law, jus possidendi is a necessary incident of ownership.” (Metro Manila transit Corp. Vs. D.M. Consortium, Inc., 517, SCRA 632). According to Perla Valencia, the property was inherited by Rafael Valencia from his father Eduardo Valencia who fenced the whole area sometime in 1924. This allegation by Perla Valencia is supported by documentary evidence as this court notes that there appears a certification in TCT No. 9437 in the name of Rafael Valencia that said land was originally registered on the 14th day of July, in the year nineteen hundred and twenty five (1925), in the Registration Book of the Office of the Register of Deeds of Palawan. The same certification appears in TCT No. 124087 in the name of the Hrs. of Rafael Valencia. Perla Valencia further testified that Rafael Valencia did not make a repair of the original fence. The old fence made out of barbed wire was already deteriorated but still existing. Although she admitted that they did not occupy the property as they just used to go there to visit the property, their exercise of right of ownership over the same is very evident because they have people there making copra but during the time that the defendants occupied the property their people could no longer make copra because the defendants barred the people who wanted to make copra. The coconuts trees were no longer there as the defendants cut down the same without their (witness) consent. Although the defendants are occupying the subject property since 1994, the possession of the heirs of Rafael Valencia over the same are considered uninterrupted since “acts merely tolerated, and those executed clandestinely and without knowledge of the possessor of a thing, or by violence, do not affect possession.” (Arts. 537, Civil Code) in Calimpong vs. Heirs of Filomena Gumeia (486 SCRA 441[2006 ] the Supreme Court reiterated that “a registered property from the time of its registration has become final could not be acquired by adverse possession.”
Damages
For actual damages, the Valencias claimed the amount of not less than P50,000.00 because the Simplicianos allegedly felled and utilized about 50 fruit-bearing coconut trees over the years. Moreover, the Valencias asked for an amount of not less than P20,000.00 for the cost of refilling the diggings made in the subject property. However, the trial court only awarded the Valencias temperate damages in the amount of P50,000.00 in lieu of actual damages for their failure to adduce definite proof as to how many coconut trees were actually felled by the Simplicianos and if they truly funded the refilling of the excavated portions in the subject property.
There is no question that Article 2224 of the Civil Code expressly authorizes the courts to award temperate damages despite the lack of certain proof of actual damages, to wit:
Article 2224. Temperate or moderate damages, which are more than nominal but less than compensatory damages, may be recovered when the court finds that some pecuniary loss has been suffered but its amount cannot, from the nature of the case, be proved with certainty.
As aptly observed by the trial court, from the circumstances here obtaining, it cannot be denied that the Valencias suffered loss in earnings from the harvests of coconut trees when the Simplicianos usurped their property for almost 20 years although the exact amount was not proven. Accordingly, the award of P50,000.00 as temperate damages is in order.
On the award of moral damages, Art. 2220 of the Civil Code provides that “[W]illful injury to property may be a legal ground for awarding moral damages if the court should find that, under the circumstances, such damages are justly due. xxx” Based on the records, the Valencias have clearly established that they suffered mental anguish due to Simplicianos’ continued occupation of their property despite being informed that it was already owned and titled in their names and by cutting down the planted coconut trees where they could have potentially gained income from. The award of P10,000.00 as moral damages, therefore, is only proper and just.
Considering that the Valencias satisfactorily established their claim for moral damages, the award of exemplary damages[22] in the amount of P10,000.00 is likewise in order.
Regarding the award of attorney’s fees, it is well settled that no premium should be placed on the right to litigate and not every winning party is entitled to an automatic grant of attorney’s fees.[23] In the instant case, We find the award of attorney’s fees proper because the Valencias would not be involved in a civil suit and incur expenses had the Simplicianos respected their right as owners of the subject property.[24]
Finally, We find the trial court’s award of P1,000.00 per month reasonable for the use and occupation of the subject lot based on the following considerations, viz:
“With regard to the claim for reasonable amount for the use and occupation thereof of at least One Thousand Pesos (P1,000.00) a month from September 1994 until the defendants have actually vacated and delivered the same to the plaintiff, the same can be granted for it is duly established that the defendants are occupying the said property and and due to the defendants’ unlawful act of occupying and fencing the whole property, plaintiff and her co-owners are deprived possession (sic) of the property. Considering that the entire area is more than Fourteen Thousand (14,000) square meters, the amount prayed by the plaintiff is reasonable because they could not even get the produce of the coconuts planted in their land as it was the defendants who were getting the produce of the said coconuts. They had been paying the taxes yearly but they could not get any benefit from their property because it was fenced by the defendants that is why they could not get in there.”
WHEREFORE, premises considered, the instant appeal is hereby DENIED. The assailed Decision dated March 22, 2013 issued by the Regional Trial Court, Branch 95 of Puerto Princesa City, Palawan, in Civil Case No. 3227 is AFFIRMED.
SO ORDERED.
Carandang, R.D., Chairperson, and Barza, R.F., JJ., concur.
[1] Rollo, pp. 37-53
[2] Only Milagros Valencia-Navarro filed the Complaint for Recovery of Possession with Damages despite being co-owners with her mother and siblings. In the narration of facts, they will be referred by individual names but collectively, they shall be referred to as the Valencias
[3] “The Simplicianos” for brevity
[4] Records, pp. 10-11
[5] See: Final Report of the CENRO dated May 14, 1996, p. 11
[6] Records, p. 12
[7] Records, pp. 1-5
[8] Records, pp. 20-21
[9] Records, pp. 39-42
[10] Records, pp. 246-247
[11] The RTC approved the following heirs of Ernesto Simpliciano as substituted party defendants, to wit:
| 1. Loreta S. Baluyot | 4. Aries Simpliciano | |
| 2. Alvin Simpliciano | 5. Sheryl Simpliciano | |
| 3. Ariel Simpliciano |
See: Order dated July 8, 2002 Records, p. 229
[12] Records, pp. 365-365b
[13] See: Records, pp. 439-440
[14] Supra note 1
[15] Records, p. 478
[16] Rollo, pp. 30-31
[17] Records, p. 243
[18] See: Records, pp. 192-208; 241-243 Formal Offer of the Valencias with Annexes and the Simplicianos’ Formal Offer with Annexes Records, pp. 436-444
[19] Vda. de Aguilar vs. Sps. Alfaro G.R. No. 164402 July 5, 2010
[20] Supra note 17
[21] Ong vs. CA G.R. No. 142056 April 19, 2001
[22] “If the court has no proof or evidence upon which the claim for moral damages could be based, such indemnity could not be outrightly awarded. The same holds true with respect to the award of exemplary damages where it must be shown that the party acted in a wanton, oppressive or malevolent manner.” Furthermore, this specie of damages is allowed only in addition to moral damages such that no exemplary damages can be awarded unless the claimant first establishes his clear right to moral damages.”(See: Mahinay vs. Velasquez, Jr. G.R. No. 152753 January 13, 2004)
[23] MCC Industrial Sales Corp. vs. Ssangyong Corp. G.R. No. 170633October 17, 2007
[24] Under Art. 2208. par. 2, attorney’s fees and expenses of litigation may be recovered when “the defendant’s act or omission has compelled the plaintiff to litigate with third persons or to incur expenses to protect his interest”