G.R. No. L-45837. October 28, 1977
THE HEIRS OF JULIANA CLAVANO, REPRESENTED BY FELICITACION C. DUMALAGAN, CESAR C. DUMALAGAN, ANECITO D. DUMALAGAN, EMIGDIO SORIA, JUANITO J. TAGABUCBA AND ANECITA T. DUMALAGAN,…
CONCEPCION JR., J.:
This is a petition for certiorari and prohibition to annul
and set aside the decision of the respondent Judge, dated January 20, 1977,
dismissing the petitioners’ complaint for lack of a cause of action, and to
enjoin the respondent Judge from trying and deciding Civil Case No. 3055 of
the Court of First Instance of Misamis Occidental, Branch I.
On September 28, 1970, the
petitioners filed with the Court of First Instance of Misamis Occidental,
Branch I, an action for the reformation and rescission of a lease contract
against the private respondent Lee Gee & Co., and David Ang Militante,
docketed therein as Civil Case No. 2791.[1] In due time, the trial court rendered
a decision against the petitioners and in favor of the private respondent and
David Ang Militante, the dispositive portion of which reads as follows:
“WHEREFORE, in view of the foregoing, judgment is hereby
rendered dismissing plaintiffs’ complaint and further declaring .the lease
contract dated April 11, 1958, Appendix
“A” to the plaintiffs’ complaint dated September 28, 1970 herein above quoted, as having
been duly and validly executed by and between the parties thereto; that the
terms and conditions therein incorporated are very clear leaving no room for
further interpretation or construction by this Court; sentencing plaintiffs to
pay defendants the amount of P1,000.00 as attorney’s fees, the instant action
having been filed just to harass the defendants.
“Costs against the plaintiff.”[2]
Not satisfied with the above decision, the petitioners appealed
to the Court of Appeals, which appeal is still pending with the said appellate court.[3]
Thereafter, on September 2, 1974, the petitioners filed another
complaint[4]
against the private respondent Lee Gee & Co., for recovery of ownership and
possession of the land subject matter of the lease contract in Civil Case No.
2791, and was docketed therein as Civil Case No. 3055.
The private respondent moved to dismiss[5]
the complaint on the following grounds:
(1) that the cause of action is barred by a prior judgment; and (2)
there is another action pending between the same parties and for the same
cause, which the petitioner opposed.[6]
In the meantime, the petitioners filed a motion for inhibition,[7]
alleging that respondent Judge should inhibit himself from hearing, trying and
deciding Civil Case No. 3055 because of his ruling, decision and/or comment in
Civil Case No. 2791. The same, however,
was denied by respondent Judge in his order,[8]
dated December 10, 1974.
Acting upon the motion to dismiss and the opposition thereto, the
respondent Judge issued, on October 23, 1974, an order[9]
denying the private respondent’s motion to dismiss in the following tenor:
“The grounds of the Motion to Dismiss dated September 30,
1974, filed by the defendant thru counsel, not being indubitable but
evidentiary, it appearing that the land subject matter of the instant complaint
is not identical with the land subject matter of Civil Case No. 2791, the same
is hereby denied.”
Thereafter, the private respondent filed its answer,[10]
admitting some allegations and denying the other allegations of the complaint,
and by way of special affirmative defenses alleged that the petitioners have no
cause of action, and that there is a pending action between the petitioners and
the private respondent, involving the same subject matter.
The issues having been joined, the case was set for pre-trial on
October 6, 1975. At the said hearing,
the private respondent, thru counsel, manifested that it would file a motion to
dismiss the complaint on the grounds alleged in its affirmative defenses, and
at the same time, moved orally for a preliminary hearing on its affirmative
defenses, which the respondent Judge granted, over the objection of the
petitioner.[11]
At the hearing on December 9, 1975, the petitioners presented a
written motion for reconsideration[12]
of the order of respondent Judge granting private respondent a preliminary
hearing on its affirmative defenses, alleging that since private respondent did
not include in its motion to dismiss, the ground of lack of cause of action,
the same had been waived under the rule on omnibus motion, while the second
ground, that is, pendency of another action between the same parties for the
same cause, had already been resolved by respondent Judge when he denied the
private respondent’s motion to dismiss; hence, both grounds of a motion to
dismiss may no longer be set up as affirmative defenses in the private respondent’s
answer.
The respondent Judge denied the petitioner’s motion for
reconsideration, and required the private respondent to present its evidence;
thereafter, the petitioner also adduced his evidence in opposition thereto, on
the basis of which the respondent Judge rendered his decision[13]
or order, the dispositive portion of which reads as follows:
“THEREFORE, it
is the considered opinion of this Court and so holds, that the plaintiffs
have no cause of action against the defendant and consequently, this case is
hereby Dismissed, with costs against the plaintiff, and to pay attorney’s fees
in the amount of P2,000.00
“The counterclaim of the defendant not having been
substantiated with sufficient evidence, the same is hereby Dismissed.”
Without filing a motion for reconsideration, the petitioners
interposed the present petition, claiming that respondent Judge committed a
grave mistake of law, and acted with grave abuse of discretion when he granted
the private respondent a preliminary hearing on its affirmative defenses and in
rendering his decision or order dismissing the complaint, and that there is no
appeal, nor any plain, speedy and adequate remedy in the ordinary course of law
except thru the present petition.
In compliance with the resolution of this Court, dated April 1,
1977,[14]
the respondent Judge as well as the Private respondent filed their respective
comment on the petition.[15]
Thereafter, pursuant to the resolution of this Court, dated June 20, 1977,[16]
petitioners filed their reply[17]
to the respondents’ comment on the petition.
In Our resolution of August 3, 1977 this Court resolved to
consider the comments of the respondents as their answer to the petition, and
the case deemed submitted for decision.[18]
In his comment, respondent Judge claims that he granted the
private respondent’s verbal petition for a preliminary hearing on its
affirmative defenses pursuant to Section 5, Rule 16 of the Revised Rules of
Court which authorizes courts to conduct a preliminary hearing on affirmative
defenses set forth in the defendant’s answer.
Upon the other hand, the private respondent contends, among others, that
the instant petition is not the proper remedy to set aside the order or
decision of the respondent Judge and that the latter did not act with grave
abuse of discretion in issuing the disputed order. Hence, both respondents pray for the
dismissal of the petition.
We find the
petition to be without merit.
Section 5, Rule 16 of the Rules of Court provides as follows:
“Sec. 5. Pleading
grounds as affirmative defenses. –
Any of the grounds for dismissal provided for in this Rule, except improper
venue, may be pleaded as an affirmative defense, and a preliminary hearing may
be had thereon as if a motion to dismiss had been filed.”
The aforequoted provision allows the
grounds for a motion to dismiss to be set up as affirmative defenses in the
answer if no motion to dismiss has been filed.
If such motion has been filed and unconditionally denied, the grounds
alleged therein are deemed finally adjudicated and cannot be alleged again in
the answer. As to other grounds
available at the time the motion was filed but not alleged therein, they are
deemed waived, under Rule 15, Section 8, except those specified in Rule 9, Section
2, i.e., failure to state a cause of action and lack of jurisdiction over the
subject matter.[19]
Hence, although the private respondent failed to include in its motion to
dismiss the ground of failure to state a cause of action, the same cannot be
considered to have been waived, and it may be pleaded as an affirmative
defense in its answer.
Besides, under this section a preliminary hearing may be had on
the affirmative defenses as if a motion to dismiss had been filed. During such preliminary hearing evidence may
be admitted. Nevertheless, We believe
that the respondent Judge committed an error in conducting a preliminary
hearing on the private respondent’s affirmative defenses. It is a well-settled rule that in a motion to
dismiss based on the ground that the complaint fails to state a cause of
action, the question submitted to the court for determination is the
sufficiency of the allegations in the complaint itself. Whether those allegations are true or not is
beside the point, for their truth is hypothetically admitted by the
motion. The issue rather is: admitting them to be true, may the court
render a valid judgment in accordance with the prayer of the complaint? Stated otherwise, the sufficiency of the
cause of action must appear on the face of the complaint in order to sustain a
dismissal on this ground. No extraneous
matter may be considered nor facts not alleged, which would require evidence
and therefore must be raised as defenses and await the trial.[20]
In other words, to determine the sufficiency of the cause of action, only the
facts alleged in the complaint, and no others should be considered.[21]
The respondent Judge departed from this rule in conducting a
hearing and in receiving evidence in support of the private respondent’s
affirmative defense, that is, lack of cause of action.
Be that as it may, it is settled that certiorari, being an
extra-ordinary remedy, can not be resorted to whenever another adequate remedy
is available.[22]
Indeed, under Section 1 of Rule 65 of the Rules of Court, the writ of certiorari
will not lie where an appeal can be taken.
The proper remedy in this case, it being for the setting aside of the
order of dismissal, is appeal not certiorari. The order of dismissal in the instant case
was a mere error of judgment, and was not a matter of lack or excess of
jurisdiction.[23]
Having arrived at the above conclusion, We find it unnecessary to
discuss the question of whether or not the respondent Judge should be
disqualified from trying and deciding Civil Case No. 3055.
ACCORDINGLY, the instant petition should be, as it is
hereby, dismissed for lack of merit.
SO ORDERED.
Santos, J., concur.
Fernando, J., (Chairman), concur
with the qualification that he is in agreement with the views expressed by
J. Barredo and J. Antonio on the power of a court to conduct a preliminary
hearing on private respondent’s affirmative defenses.
Barredo and Antonio,
JJ., concurs in a separate opinion.
Aquino, J., did not take part.
[1]
p. 7, Rollo.
[2]
pp. 29-30, Rollo.
[3]
pp. 7, 30, Rollo.
[4]
Annex “B”, p. 22, Rollo.
[5]
Annex “D”, p.
29, Rollo.
[6]
Annex “E”, p. 31, Rollo.
[7]
Annex
“C”, p. 26, Rollo.
[8]
Annex “C-1”, p. 28, Rollo;
[9]
Annex “D-1”, p. 34, Rollo.
[10]
Annex “F”, p. 35, Rollo.
[11]
pp. 11, 12, Rollo.
[12]
Annex “M”, p. 42, Rollo.
[13]
Annex “N”, p. 47, Rollo.
[14]
p. 54, Rollo.
[15]
pp. 63, 68, Rollo.
[16]
p. 86, Rollo.
[17]
p. 87, Rollo.
[18]
Minutes of the proceedings held on Wednesday, August 3, 1977 (Item No. 10).
[19]
1 Moran, Rules of Court, 1970 Ed., p. 513.
[20]
Adamos vs. J.M.
Tuason, 25 SCRA 529.
[21]
1 Moran, Rules of Court, 1970 Ed., pp. 494-495.
[22]
Javellana vs. Querubin, et al., 17 SCRA 873, and cases therein cited.
[23]
Tirona vs. Nañawa, 21 SCRA
395, and cases therein cited.
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CONCURRING OPINION
ANTONIO, J.:
I concur on the basis of
the following:
It must be noted that the
trial court denied the motion to dismiss because the grounds thereof were not
“indubitable but evidentiary * * *.
Pursuant to Section 3, Rule 16, of the Rules, after hearing of the
motion to dismiss, the court may either deny or grant the motion or allow
amendment of the complaint, or if the ground alleged is not indubitable “defer the hearing and
determination of the motion until the trial * * *”. “Indubitable
means “something that cannot be doubted; also certain and unquestionable;
without doubt”.[1] Thus, if the court finds the allegations of
the complaint to be sufficient but doubts their veracity, it must deny the
motion to dismiss and require
the defendant to answer and then proceed to try the case on the merits.[2] Consequently, the trial court conducted a
hearing on the case which, although denominated as preliminary, was actually a
trial on the merits; hence, its
judgment dated January 26, 1977. It is
important to note that, among others, the trial court found the following facts
established by the evidence:
“The evidence of both parties show the following
uncontroverted facts: that on April 11,
1958, plaintiffs, together with the late Teodoro Dumalagan, entered into a
contract of lease with the defendant on two parcels of land, designated as Lots
14 and 15, covered by Original
Certificate of Title No. R0-37, of the Register of Deeds of Misamis Occidental.
“The plaintiffs allege
that the land, subject matter of the contract of lease, is the property of their father, Teodoro Dumalagan; that
the land presently occupied by the defendant is the property of their mother,
Juliana Clavano, which are designated as Lots No. 14 and 15, covered by
Original Certificate of Title No. 0-42; that the plaintiffs when they affixed
their signatures to the contract of lease at the instance of their father, were
under the impression that the property, subject matter of the said contract,
was the land belonging to their father and not the one belonging to their mother.
“However, upon careful
perusal of the provisions of the contract particularly the description of the
two lots under lease, this Court finds that the same described in the
contract (Exhibit ‘A’) as follows:
“FIRST PARCEL: Bounded
on the Northeast by Teodoro Dumalagan, on the Northwest by Lot No. 15, on the
Southeast by Lot No. 14, and on the Southwest by Lot No. 13, having an area
of 1769 square meters, and is assessed at P110.00 per Tax Dec. No. 43550. This parcel is known as Lot No. 14 of the
Cadastral Survey at Looc, Plaridel, Misamis Occidental.
“SECOND PARCEL: Bounded
on the Northeast by Teodoro Dumalagan, on the Southeast by Lot No. 14, on the
Northwest by Lot No. 12, and on the Southwest by Lot No. 11, having an area
of 1929 square meters, and is assessed at P160.00 per Tax Dec. No. 43549. This parcel is known as Lot No. 15 of the
Cadastral Survey at Looc, PlaridelMisamis Occidental.
which description tallies with the
description of Lots No. 14 and 15 of the property of Juliana Clavano covered by
Original Certificate of Title No. 0-42 (Exhibit ‘C’). However, the title of the Certificate
mentioned therein pertains to the land belonging to Teodoro Dumalagan under
Title No. R0-37. Nevertheless, the
plaintiffs upon the execution of the contract and thereafter, permitted the
defendant to occupy the land of their mother, and tolerated them to construct a
big commercial building thereon, and collected the rentals of the land in
accordance with the agreement in the contract.
“IN VIEW OF THE FOREGOING, this Court is of the opinion that
the defendant is entitled to the possession of the land in question by virtue
of the contract of lease (Exhibit ‘A’), until the said contract is declared null
and void by a competent Court or otherwise terminated upon agreement of the
parties. Even though the land occupied
by the defendant is not the land covered by Original Certificate of Title No.
R0-37 as found in the Contract (Exhibit ‘A’), nevertheless, the land so
occupied is the very land described in the contract as Lots No. 14 and 15. Furthermore, when the defendant upon the
execution of the contract, occupied Lots No. 14 and 15 and made use of the
same by constructing a big commercial building thereon, the plaintiffs
permitted and tolerated them to occupy and use the same, never complaining nor
asserting that the said lots so occupied were not the very lots covered by
their contract of lease, and matters stood thus until December 8, 1966 when the
plaintiffs instituted an action against the defendant in connection with the
contract of lease, docketed as Civil Case No. 2529 for Ejectment, Liquidation
and/or Termination and Damages, which case was dismissed; and again on
September 28, 1970, when plaintiffs filed Civil Case No. 2791, against the
defendant for Reformation, Rescission and/or Collection with Damages which case
is now on appeal at the instance of the plaintiffs. In the light of the foregoing, this Court
believes that the description of the two lots, No. 14 and 15 in the contract,
as well as the intention of the parties at the time the contract was entered
into should prevail, and not the number of the certificate of title as
appearing in the contract.”[3]
Considering the
afore-mentioned facts, I find
that respondent Judge has not acted without or in excess of his
jurisdiction or gravely abused his discretion in issuing the Order in question.
[1]
Asejo v. Leonoso, 78 Phil. 467, 470.
[2]
Piñero v. Enriquez, 84 Phil. 774.
[3]
Annex “N”, Petition.
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CONCURRING OPINION
BARREDO, J.:
I concur in the judgment to dismiss the petition herein.
While it is true that as a rule, when a motion to dismiss is
based on failure of the complaint to state a cause of action, the sole
criterion in determining whether or not such motion should be granted are the
facts alleged in the complaint, it does not necessarily follow that if at the
hearing of said motion the parties either upon direction of the court or with
its acquiescence present their respective evidence, the court would be
committing a grave abuse of discretion or exceed its jurisdiction should it
decide the issue on the basis of the evidence thus before it. As Justice Antonio points out in his concurrence
herein, the hearing where evidence were presented by both parties amounts to
the trial of the case itself and the finding of the court resulting therefrom
is a judgment, bare technicalities of procedure disregarded. In such an event, the remedy of the aggrieved
party is not certiorari but appeal, hence the present petition cannot be
entertained. In this connection, it
might just as well be said that it is quite obvious that in the light of the
facts found by the trial court which appear to be incontrovertible, even an
appeal by petitioners would have been futile.
Parenthetically, I might add that I do not subscribe to the view
that after the court has denied a motion to dismiss, the ground of dismissal it
has passed upon is already deemed finally adjudicated. I know that the statement on this point in
the main opinion herein of Justice Concepcion is taken from Moran’s comments on
Section 5 of Rule 16, but since no reason is given by Moran to justify it nor
is any authority cited by him in support thereof, I feel free to express a different
pose. I am of the opinion that the
denial of a motion to dismiss is always interlocutory in character. Therefore, the defendant cannot be precluded,
should further developments at the trial show that a dismissal is indeed
justified on the very same ground already passed upon in the order of denial,
from asking the court to dismiss the
action on the ground he had invoked.
Thus, whether or not, the defendant reiterates his ground of dismissal
as an affirmative defense in his answer, he has a right to present additional
evidence in support of such ground.[1]
And even if he does not present additional evidence, if the very evidence of
the plaintiff should evince the existence of such ground, it would only be
logical and proper to allow the defendant to insist on a dismissal of the
action and for the court to accede. It
is in the very nature of an interlocutory order that it is subject to modification
or reversal as the result of further proceedings may warrant, and
correspondingly, it is the right of the parties concerned to try to improve
their respective positions by presenting additional evidence or argument in the
course of the trial or at the further stages of the proceedings, precisely to
secure such modification or reversal.
This is even a more expeditious alternative than insisting on prolonging
the incident on the motion to dismiss itself.
[1]
Many practitioners resort to the practice of reiterating the grounds of
dismissal of their denied motions in their answers as affirmative
defenses. I consider such reiteration
unnecessary, even if it might serve as a continuing invocation for purposes of
ultimate developments, considering the interlocutory nature of the denial. In my view, the only ground of dismissal in a
motion to dismiss should be deemed automatically incorporated in the answer as
an affirmative defense everytime the motion to dismiss is denied, considering
the interlocutory character of such denial.
Accordingly, it becomes part of a pleading that the party concerned has
the right to additionally substantiate in the course of the trial.