MERCEDES A. FAVIS, PETITIONER, VS. HON. RIZALINA T. CAPCO-UMALI IN HER CAPACITY AS THE PRESIDING JUDGE OF REGIONAL TRIAL COURT, BRANCH 212, MANDALUYONG CITY AND EDGARDO S. ALDAY…
VILLON, J.:
The instant petition stemmed from the complaint for specific performance and damages, with prayer for a temporary restraining order and preliminary mandatory injunction[4] filed on June 1, 2011 with the RTC of Mandaluyong City by plaintiff Edgardo S. Alday, respondent herein, against therein defendants spouses Henry T.F. Guico and Vivien M. Guico, represented by Mercedes Favis, petitioner herein; Mercedes A. Favis, in her own personal capacity; Empire East Land Holdings, Inc., in its capacity as the seller of Dayton 2, Units 3-H and 3-G, California Gardens; and the Registry of Deeds of Mandaluyong City. The said complaint was docketed as Civil Case No. MC11-5452 and was raffled off to Branch 212 of the RTC, presided by respondent Judge Rizalina T. Capco-Umali. The material portions of the complaint alleges:
“0.7. Defendants EMPIRE EAST LAND HOLDINGS, INC. [Empire] and Sps. HENRY THEODORE F. GUICO and VIVIEN M. GUICO [Guico] entered into a CONTRACT TO BUY AND SELL of Dayton 2, Units 3-H of the California Gardens located at Mandaluyong City xxx. Specifically, the ‘subject unit’ is described as CLUSTER/TOWER: Dayton 2; FLOOR/UNITS NO: 3-H; AREA: 57.50 SQ. M.; PARKING SLOT/S: None; and, DESCRIPTION: 2BR. Defendants ‘Guico’ caused the notarization of the same document by LEO COFINCO, Notary Public, California, Los Angeles County, on October 07, 2001. The same document does not show any notarization by any Notary Public in the Philippines. However, the parties acquiesced and complied with the same contract.
08. Unit 3-G, which is the twin unit of Unit 3-H located at Cluster/Tower – Dayton 2 was likewise included in the contract between the afore-named parties. The same was fully paid eventually. Said payment were duly acknowledged by defendant ‘Empire’. And, the same unit was occupied and improved by the plaintiff, [Dr.] EDGARDO ALDAY.
09. In retrospect, defendant [Dr.] MERCEDES FAVIS in her letter of August 24, 2009 [via her e-mail thru one ‘Ester Favis-Filart’] requested ‘Eddie’ [Plaintiff EDGARDO S. ALDAY], thus: ‘So please check my balance in the joint each time you deposit your P20,000.00. Please make sure there is at least P85,000 balance to cover the more than P60,000 plus auto deductions from my PDC’s with Empire East and the P25,000.00 minimum balance.’ xxx Effectively, the deposits made by the plaintiff were payments for the subject units as per the agreement between defendants ‘Guico’, ‘Favis’ and plaintiff, [Dr.] E.S. ALDAY. The same agreement came in the form of e-mails, letters, bank deposits, payments in kind between the parties. The deposits made by the plaintiff are the vertical consequences of the offer of the same defendants to sell the subject units in issue to plaintiff, [Dr.] E.S. ALDAY. xxx
10. In the letter of defendant ‘Favis’ to the herein plaintiff dated Sept. 15, 2009, thru [Ms.] LALAINE VILLAFUERTE, defendant ‘Favis’ said: ‘xxx Eddie xxx Medyo hard up ako ngayon because of all the expenses for my surgeries… fares, c0-pays, medicines, etc. etc. Can you please just deduct all legal expenses from the sale of the condo when we make cuenta? Do not worry, I will sell you the condo lower than the current market value of the units!!! I instructed Henry to give me an authenticated power of atty. to be able to sell the Dayton 3 G-H- units as the condo is in his and Binky’s names. He is planning to go to LA to have the SPA authenticated.’
11. On Sept. 22, 2009, in another letter to ‘hi eddie’, thru ‘Lalaine Villafuerte’, defendant [Dr.] MERCEDES FAVIS said: ‘xxx. Please give the checks to Mang Ester so she can have the September 28, ’09 check deposited. I want to make sure I do not lack money in the joint for the October autodeductions of the Empire East. I worry about this as there is no income for the Dayton G-H units to help out with monthly amortizations, as I told Al not to get get (sic) the combination unit leased cause I have plans to upgrade it and hopefully sell it. I did not mention that you were the buyer.’
12. Plaintiff [Dr.] EDGARDO S. ALDAY filed with ‘Empire’ his BUYER’S INFORMATION SHEET after paying continuously considerable amounts of money for Dayton 2 Unit E-G & H to defendants ‘Guico’ and ‘Favis’. xxx
13. On Dec. 23, 2009, defendant ‘Favis’ acknowledged her indebtedness in favor of herein plaintiff in the amount of EIGHTY EIGHT THOUSAND EIGHT HUNDRED EIGHTY ONE PESOS & SIXTY CENTS [Php.88,881.60] and her acknowledgment of ONE MILLION PESOS [Php 1,000,000.00] from the same plaintiff. Upon her suggestions, defendant ‘Favis’ asked the plaintiff to deduct the P88,881.60 representing her IOUs from the P1,000,000.00 advanced by the plaintiff. Since the deductions were never accomplished, it remains to reason that the P1,000,000.00 stands as advance payment for the ‘subject units.’ And, since the P88,881.60 were never paid to the plaintiff, the same shall be outstanding and must be added to P1,000,000.00 as advance payment of the plaintiff. These are apart from the regular deposits made by the plaintiff to answer for the amortizations for the ‘subject units’. The same payments acknowledged by defendant ‘Favis’ inevitably are converted as payments made by the plaintiff for the same ‘subject units’. The monthly regular deposits of TWENTY THOUSAND PESOS [P20,000.00] were made by the plaintiff in payment of the condominium units in issue. xxx A summation of all the plaintiff’s payments and deposits for the ‘subject units’ reveals full payment made by the plaintiff in favor of the defendants. The purchase price of Unit 3-H, per the Contract to Buy and Sell is P1,575,000.00, exclusive of other taxes and fees specified under the same contract. For the twin units, the total consideration must be a little more than P3,551,000.00. The same amount was paid by the plaintiff to defendants ‘Guico’ and ‘Favis’.
14. On March 01, 2010, defendants ‘Guico’ informed defendant ‘Empire’ that they are assigning their rights over the condominium units in issue to plaintiff [Dr.] EDGARDO S. ALDAY. xxx And, that defendant ‘Favis’ shall coordinate with ‘Empire’ on the matter, per her alleged Special Power of Attorney.
15. On August 08, 2010, plaintiff, thru Atty APOLONIO A. PADUA, Jr. requested for the full consummation of the sale between defendants ‘Guico’, represented by defendant ‘Favis’, and plaintiff [Dr.] EDGARDO S. ALDAY. xxx
16. Atty. DONNA JANE M. ALAGAR responded on August 23, 2010 to the aforesaid letter xxx demanding for an accounting; but acknowledging plaintiff Dr. ALDAY as the transferee of the units in issue. Plaintiff, [Dr.] E.S. ALDAY explained in the letter in no uncertain terms the amounts which he already paid for the ‘subject units’ totaling to an amount of P3,551,000.00 xxx. It was received by Atty. DJ M ALAGAR on November 29, 2010.
17. In compliance with the Contract to Buy and Sell, Government Fees were duly paid for and in behalf of defendant ‘Empire’. xxx
18. On February 10, 2011, plaintiff [Dr.] EDGARDO S. ALDAY in coordination with defendant ‘Empire’ paid the REAL ESTATE TAXES for the units in issue. xxx
19. On March 07, 2011, plaintiff [Dr.] E.S. ALDAY, thru Atty. APOLONIO A. PADUA, Jr. requested defendant ‘Empire’ to finalize the documents for the transfer of title over the two units in issue to Dr. E.S. ALDAY and to settle the issue as to who should pay the Capital Gains Tax. xxx
20. Meanwhile, plaintiff [Dr.] E.S. ALDAY took possession of the properties peacefully, openly, exclusively adversely, to the exclusion of third parties; and, as an owner. There was no objection from anyone, even from defendants ‘Favis’ and ‘Empire’. The plaintiff did not only take possession of the properties; but, improved the same.
21. Unfortunately and in open violation of the express arrangements between the plaintiff and defendant ‘Favis’; and, despite the full payment of the units by the same plaintiff, defendant ‘Favis’ demanded of the plaintiff to make good his offer to purchase the condominium units within fifteen (15) days from plaintiff’s receipt of Annex ‘X’ hereof/Letter of Demand of defendant ‘Favis’. And, in case of default on the part of the plaintiff, defendant ‘Favis’, allegedly upon the instructions of HENRY GUICO, will revoke all documents executed about the sale of the properties. Defendant ‘Favis’ is now demanding for FIVE MILLION PESOS [P5,000,000.00] for the two units in exchange for the execution of the Deed of Assignment in favor of the plaintiff. The plaintiff finds this to be preposterous as he already paid in full the consideration for the condominium units.
22. On March 15, 2011, defendant ‘Empire’ advised the Sps. HENRY THEODORE GUICO to pay the EXPANDED TAX and the CAPITAL GAINS TAX on the transfer of the units to a third party, [Dr.] E.S. ALDAY xxx. Up to this writing, defendants ‘Guico’ and ‘Favis’ failed, refused, neglected and still refuse, fail, and neglect to pay the aforesaid tax obligations; thus, preventing defendant ‘Empire’ to finalize the document of transfer in favor of the plaintiff;
xxx xxx xxx
Prayer
WHEREFORE, plaintiff respectfully prays for judgment as follows:
On June 7, 2011, petitioner was served with summons. Spouses Henry Guico and Vivien Guico, however, were not served with summons since they were staying in the United States of America.[5]
On June 29, 2011, petitioner filed her Answer with Counterclaim[6] denying the material allegations in the complaint and averred by way of affirmative defense, the following:
“18. Plaintiff has no cause of action against herein defendant since she is merely the (sic) acted as the broker of the property being purchased by the plaintiff from defendant Sps. Guico;
19. Plaintiff has no cause of action against herein defendant since defendant is not the owner of the property upon which the demand for specific performance can be complied with;
20. Plaintiff cannot demand fulfillment or compliance of any obligation considering that he has not paid the purchase price on the properties she claimed to have bought;
21. Before any demand for the execution of any contract, there should be accounting on the total amount plaintiff allegedly paid.”
Subsequently, on August 8, 2011, respondent Alday filed a motion for leave to serve summons by publication (extra-territorial service of summons)[7] upon defendants Spouses Guico. On September 6, 2011, respondent judge issued an order[8] denying the said motion on the ground that the complaint in Civil Case No. MCII-5452 is an action in personam, hence the rules on extraterritorial service of summons or summons by publication do not apply.
On December 7, 2011, petitioner filed a Motion to Dismiss[9] the complaint in Civil Case No. MCII-5452 alleging that:
1. Although defendant Spouses Guico had been impleaded as party defendants in this case, they were not served with summons hence the Court never validly acquired jurisdiction over their persons; and
2. Defendant Spouses Guico being indispensable parties to this case against whom the relief prayed for is addressed, and the court not having acquired jurisdiction over their persons, the subsequent proceedings therein would be a nullity.
Respondent Alday filed his comments/opposition[10] to the said Motion to Dismiss.
On February 20, 2012, the RTC issued the assailed Order[11] denying petitioner’s Motion to Dismiss, ratiocinating:
“Under the present Rule, it is expressly provided that the Motion to dismiss must be filed within the time for, but before filing of, the answer to the complaint or pleading asserting a claim [Section 7, Rule 16 Revised Rules of Court].
From the records of this case, this Court noted that defendant Favis subject motion to dismiss the instant complaint was filed only on 07 December 2011 after she had filed her Answer with counterclaims on 30 June 2011, or six [6] months after defendant filed her answer to the complaint.
As held by the Supreme Court in Heirs of Mariano Laguitan versus Icao [224 SCRA 69 {1993}], it ruled that where a motion to dismiss was filed three [3] months after the defendants had filed their amended answer, the said motion was filed out of time. Similarly, in Ruiz, Jr. versus Court of Appeals [220 SCRA 490 {1993}], The High Court pronounced that where on answer has been filed the defendant is estopped from filing a motion to dismiss. The only exceptions to the rule are: 1) where the ground raised is lack of jurisdiction of the court over the subject matter; 2) where the complaint does not state a cause of action; 3) prescription; and 4) where the evidence that would constitute a ground for the dismissal of the complaint was discovered only during the trial.
Upon perusal of the instant motion, the Court finds that none of the foregoing grounds is present in defendant Favis’ motion to dismiss.
Further, records disclose and as correctly argued by plaintiff in his Comment/Opposition, Atty. Elmer Alcid represents only defendant Favis and not defendant Spouses Guico and so, Atty. Alcid, in the absence of any Special Power of Attorney [SPA] from defendant-Spouses Guico cannot state anything for and in behalf of the latter in the instant case.
In view of the conclusion thus far reached, this Court finds it unnecessary to discuss the other issue raised in the motion.
WHEREFORE, premises considered, the motion to dismiss is DENIED.
Petitioner’s motion for reconsideration[12] was likewise denied in the second assailed Order[13] dated May 22, 2012. Hence, petitioner filed the instant petition for certiorari contending that:
A.
THE COURT A QUO COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURIDICTION (SIC) WHEN IT SCHEDULED THE CASE FOR PRE-TRIAL AND CONTINUED TO HEAR THE CASE DESPITE THE FACT THAT AN INDESPENSABLE (SIC) PARTY TO THE CASE HAS NOT BEEN SERVED WITH SUMMONS AND THEREFORE THE COURT NEVER ACQUIRED JURIDICTION (SIC) OVER THEIR PERSONS.
B.
THE COURT A QUO COMMITTED GRAVE ABUSED OF DISCRETION AMOUNT (SIC) TO LACK OR EXCESS OF JURISDICITION (SIC) WHEN IT DENIED THE MOTION TO DISMISSED (SIC) FILED BY THE PETITIONER AND THE MOTION FOR RECONSIDERATION FILED AGAINST SAID DENIAL DESPITE LAW AND JURISPRUDENCE TO THE CONTRARY.[14]
We dismiss the petition.
Petitioner’s Motion to Dismiss is anchored on Rule 16, Section 1 par. (a) of the Rules of Court, to wit:
“Rule 16, Section 1 (a)– That the court has no jurisdiction over the person of the defending party;”
Her motion to dismiss[15] filed with the RTC pertinently reads:
“COMES NOW defendant Favis by counsel unto this Honorable Court most respectfully move to dismiss this case on the grounds that:
1. Although defendant Sps. Guicos has (sic) been impleaded as party defendants in this case, they were not served with summons hence the Court never validly acquired jurisdiction over their persons; and
2. Defendants Guicos being an indispensable party (sic) to this case and from whom the relief prayed for is addressed, the court not having acquired jurisdiction over their persons, subsequent proceedings is (sic) a nullity.
BRIEF ANTECEDENT FACTS
3. Plaintiff filed a complaint for specific performance with damages and payer (sic) for temporary restraining order and preliminary injunction against defendants Sps. Henry Theodore F. Guico and Vivien M. Guico, Mercedes A. Favis, Empire East Landholdings,Inc and Register of Deeds of Mandaluyong City;
4. Per Sheriff Return of the service of summons defendants Sps. Guicos were not served with summons being residents of the United States of America as specifically indicated in the initiatory pleading of the plaintiff. All the other defendants were served with summons hence they respectively filed their answers in due time. Registry of Deeds of Mandaluyong City did not file any answer being a nominal party to the case;
5. Plaintiff then filed a motion for leave to served (sic) Summons by Publication against defendants Sps. Guicos and on September 6, 2011, the Court issued an Order the decretal portion of which reads:
x x x
‘WHEREFORE, premises considered, the instant motion is DENIED due course.
x x x
10. It must be noted that defendant Sps. Guicos are indispensable parties to this case and without their participation in this proceedings the court cannot render a valid judgment.
xxx xxx xxx
12. Impleading an indispensable party in the complaint is one thing and acquisition of jurisdiction over the person of an indispensable party is another thing. Although the defendants Sps. Guicos were properly impleaded in the complaint yet the court still has to acquire jurisdiction over them especially so when the motion filed by the plaintiff for this incident has been denied by the court.
xxx xxx xxx
WHEREFORE, premises considered it is most respectfully prayed that judgment be rendered dismissing the complaint for lack of jurisdiction.”
It is clear from the foregoing that petitioner raised the issue of lack of jurisdiction of the RTC over the persons of therein defendants, the Spouses Guico. We find that such matter is a personal defense that can only be asserted by the Spouses Guico. “Lack of jurisdiction over the person, being subject to waiver, is a personal defense which can only be asserted by the party who can thereby waive it by silence.”[16] Thus, petitioner cannot file the motion to dismiss on the ground of lack of jurisdiction over the persons of therein defendants, the Spouses Guico.
Then, too, it is settled that even the failure to implead an indispensable party alone is not a ground for a motion to dismiss. In Domingo v. Scheer,[17] the Supreme Court held that the proper remedy when a party is left out is to implead the indispensable party at any stage of the action. The court, either motu proprio or upon the motion of a party, may order the inclusion of the indispensable party or give the plaintiff opportunity to amend his complaint in order to include indispensable parties. And only if the plaintiff to whom the order to include the indispensable party is directed refuses to comply with the order of the court, that the complaint may be dismissed upon motion of the defendant or upon the court’s own motion.[18] Since none of these instances are obtaining in the instant case, petitioner’s motion to dismiss the complaint has no leg to stand on.
In any event, it is settled that pursuant to Rule 16, Section 1[19] a motion to dismiss shall be filed within the time for but before the filing of an answer to the complaint or pleading asserting a claim.[20] Since petitioner only filed her motion to dismiss six (6) months after she filed her answer to the complaint, said motion was properly denied by the court a quo. It bears stressing that the RTC had already acquired jurisdiction over the person of petitioner. And the determination of whether the Spouses Guico are indispensable parties or merely necessary parties in the case before the court a quo, lies with the respondent judge in the proper exercise of her discretion.
A writ of certiorari is an extraordinary prerogative writ that is never demandable as a matter of right. To warrant the issuance thereof, the abuse of discretion must have been so gross or grave, as when there was such capricious and whimsical exercise of judgment equivalent to lack of jurisdiction; or the exercise of power was done in an arbitrary or despotic manner by reason of passion, prejudice, or personal hostility. The abuse must have been committed in a manner so patent and so gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.[21] Nothing of that sort is obtaining in this case. We therefore hold that respondent judge did not commit grave abuse of discretion when she denied petitioner’s Motion to Dismiss.
WHEREFORE, in light of all the foregoing, the instant petition is DISMISSED for lack of merit. The assailed orders dated February 20, 2012 and May 22, 2012 of Branch 212, Regional Trial Court of Mandaluyong City in Civil Case No. MC11-5452 are hereby AFFIRMED.
SO ORDERED.
Macalino and Corales, JJ., concur.
[1] Rollo, pp. 60-62.
[2] Entitled, “Edgardo S. Alday, Plaintiff, versus Sps. Henry T.F. Guico and Vivien M. Guico, rep. by Mercedes A. Favis, Mercedes A. Favis, in her own personal capacity, Empire East Landholdings, Inc., in its capacity as the seller of Dayton 2, Units 3-H and 3-G California Garden Square and the Registry of Deeds of Mandaluyong City, Defendants.”
[3] Rollo, p. 76.
[4] Rollo, pp. 20-30.
[5] Rollo, p. 33.
[6] Rollo, pp. 34-38.
[7] Rollo, pp. 39-41.
[8] Rollo, pp. 43-45.
[9] Rollo, pp. 47-53.
[10] Rollo, pp. 54-59.
[11] Rollo, pp. 60-62.
[12] Rollo, pp. 64-71.
[13] Rollo, pp. 76-77.
[14] Rollo, pp. 8-9.
[15] Rollo, pp. 47-52
[16] Boston Equity Resources, Inc. v. Court of Appeals, G.R. No. 173946, June 19, 2013.
[17] G.R. No. 154745, January 29, 2004.
[18] Perfecto Macababbad, Jr. v. Fernando G. Masirag, G.R. No. 161237, January 14, 2009.
[19] Section 1. Grounds. — Within the time for but before filing the answer to the complaint or pleading asserting a claim, a motion to dismiss may be made on any of the following grounds xxx
[20] Boston Equity Resources, Inc. v. Court of Appeals, G.R. No. 173946, June 19, 2013.
[21] Ebrencio F. Indoyon, Jr. v. Court of Appeals, G.R. No. 193706, March 12, 2013.